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THE  LIBRARY 
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OF  CALIFORNIA 

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A    TREATISE 


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Law  of  Irrigation 


IMCIvUOIMG 


THE    LAW   OF    WATER-RIGHTS   AND  THE  DOCTRINE  OF  APPROPRIATION 

OF    WATERS,  AS   THE  SAME   ARE   CONSTRUED    AND   APPLIED  IN 

THE    STATES    AND    TERRITORIES    OF    THE    ARID    AND 

SEMI-HUMID  REGIONS  OF  THE  UNITED  STATES  ; 

AND   ALSO  INCLUDING 

THE  STATUTES   OF  THE   RESPECTIVE  STATES   AND   TERRITORIES,  AND 
DECISIONS   OF   THE   COURTS    RELATING   TO   THOSE    SUBJECTS. 


BY 


CLESSON    S.    KINNKY. 


Sat.t    IvAKK    Citv    I?ak. 


WASHINCTOM,    1).    C. 

VV.    IL    LOWDERMILK    &    CO., 

lyAw  Publishers  and  Booksellers, 
i«94. 


Entered  according  to  Act  of  Congress,  in  the  year  1893,  by 

CivESSON  S.  Kinney, 
in  tlie  OflSce  of  the  Librarian  of  Congress,  at  Washington. 


r 


FROM   THE   I'RESS   OF  SAl'P   BROS. 
117   LIGHT   ST..    BALTIMORE. 


TO    THE 

HON.  THOMAS  M.  COOLEY,  LL.  D., 

WHO   KMIXENTLV    ADORNS   AMERICAN   JURISPRUDENCE,    IN    THE 
CAPACITY   OF 

Judge,  Author  and  Teacher, 

AND     IN     EACH     OF     WHICH     Hp;     HAS     NO     SUPERIOR, 

THIS    WORK    IS   DEDICATED 

AS    AN    EXPRESSION    OF    ADMIRATION    AND    RESPECT,    HV    ONE    WHO 

HAS    ENJOYED   THE   GOOD    FORTUNE   OF    BEING    BOTH 

HIS    PUPII,   AND    FRIEND. 


756535 


PREFACE. 


The  present  work  has  been  written  with  the  hope  that  it 
may  prove  serviceable  to  the  profession  in  their  investigation 
of  a  subject  comparatively  new  in  the  history  of  American 
jurisprudence.  Irrigation  was  born  from  the  absolute  neces- 
sities of  the  settlers  of  an  Arid  Region.  Although  practiced 
in  the  United  States  by  an  English  speaking  people  but  about 
fifty  years  it  has  been  the  principal  means  of  the  settlement 
and  development  of  that  portion  of  our  country  west  of  the 
looth  meridian,  until  to-day  it  has  become  a  subject  of 
paramount  importance  to  the  whole  country. 

Involving,  as  it  does,  a  use  of  water  based  upon  the 
principle  of  priority  of  appropriation — which  doctrine  was 
not  recognized  by  the  common  law — irrigation  has  caused 
numberless  controversies  concerning  water-rights.  As  the 
result  of  these  contentions  a  mass  of  court  decisions  and 
statutory  law  upon  the  subject  has  been  evolved  which 
governs  the  subject  of  waters  in  the  Arid  Region. 

Part  One  of  this  volume  is  devoted  to  a  general  discus- 
sion of  the  nature  and  history  of  irrigation  and  the  general 
law^s  that  govern  the  subject  in  the  Arid  Region. 

As  the  character  of  irrigation  law  depends  largely  upon 
the  physical  and  topographical  conditions  of  the  State  or 
Territory  wherein  the  same  has  been  evolved  and  is  in  force, 
in  order  to  understand  its  development  the  author  has  very 
briefly  described  the  general  condition  of  the  various  States 
and  Territories  in  Part  Two.  This  part  also  contains  an 
abstract  of  the  statutory  laws  and  the  construction  of  those 
laws  by  the  courts. 

Clesson  S.   Kinnkv. 
vSalt  Lake  City,  Utah. 

February  23,   1894. 


TABLE    OF    CONTENTS. 


Part  One. — History  and  General  Principles. 


CHAPTER   I. 

Pages. 

Irrigation  Past  and   Present i —  47 

I.  What  is  Irrigation  ? 2 —  12 

II.  History  of  Irrigation  in  Various  Countries 12 —  24 

III.  Value  of  Irrigation  to  Modern  Civilization 24 —  47 

CHAPTER   II. 

Classification  of  Waters 48—  71 

I.  Public  or  Navigable  Waters 49 —  59 

II.  Rivers  and  Water-Courses  Non-Navigable 59 —  71 

CHAPTER  III. 

The  Common  Law  Theories 72 — 149 

CHAPTER  IV. 

The  .\rid  Region  Doctrine 150 — 188 

CHAPTER  V. 

Acquisition,  Ownership,  Disposal  and  Jurisdiction  of 
and  Over  Lands  and  Waters  by   the  United 

States 189—226 

I.  Source  of  Title  of  Government  Land  and  Waters.  . . .  190 — 203 

II.  Disposal  of  Public  Lands  and  Waters 203 — 219 

III.  Jurisdiction  over  Public  Lands  and  Waters 219 — 226 

CHAPTER  VI. 

Methods   by   which    an    Appropriation    oi"    Water  is 

Effected 227—264 

I.  Essentials  of  an  Appropriation 227 — 237 

II.  Method  by  which  an  .Appropriation  is  P)ffected 238 — 264 


viii  TABLE    OF   CONTENTS — PART   ONE. 

CHAPTER  VII. 

Pages. 

Rights  Acquired  by  Appropriators  as  Against  Others.  265 — 357 

I.  Rights  Acquired  in  Waters  by  one    Appropriator  as 

against  other  Appropriators 267 — 287 

II.  Appropriation  as  against  a  Congressional  Grantee  of 

the  Government 287 — 296 

III.  Controversies  betvreen  Conflicting  Grants 296 — 297 

IV.  Appropriation  as  against  Conflicting  Claims  of  Set- 

tlers on  Lands 297 — 357 

CHAPTER  VIII. 

Nature  and  Extent  of  Rights  Acquired  to  Water 

IN  THE  Arid  Region  by  Appropriators 358 — 437 

I.  Rights  Acquired  by  Virtue  of  an  Appropriation  of  the 

Waters  or  Streams  or  Lakes 359 — 405 

II.  Doctrine  of  Abandonment   405 — 41? 

III.  Doctrine  of  Estoppel 417—424 

IV.  Conveyance  of  Water-right  and  Sale  of  Water 424 — 437 

CHAPTER  IX. 

Nature  -'^.nd  Extent  of  Rights  Acquired  to  Waters 
IN  the  Arid  Region  by  Others  than  Appro- 
priators   438 — 481 

I.  Rights  Acquired  by  Riparian  Owners 439—465 

II.  Rights  Acquired  under  Mexican  and  Spanish  Laws. .  465 — 469 

III.  Nature  and  Extent  of  Rights  in  Water  Acquired  by 

Prescription 469 — 478 

IV.  Nature  and  Extent  of  Rights  Acquired   in  Subter- 

ranean Waters  in  the  Arid  West 478 — 481 

CHAPTER   X. 

Ditch  and  Canal  Companies 482 — 509 

I.  Unincorporated  Ditch  and  Canal  Companies 483 — 492 

II.  Private  Incorporated  Ditch  and  Canal  Companies 492 — 493 

III.  Powers  of  Ditch  and  Canal  Companies 493 — 500 

IV.  Duties  of  Ditch  and  Canal  Companies 500 — 507 

V.  Liability  of  Ditch  and  Canal  Companies 507 — 509 

CHAPTER    XI. 

Legal,  Remedies 510 — 529 

I.  Remedies  in  General 510 — 514 

II.  Remedies  at  Law 514 — 5I9 

III.  Equitable  Relief 520 — 529 


table  of  contents. — part  two.  ix 

Part  Two. — State  and  Territorial  L.a.ws. 


CHAPTER   XII. 

Pages . 

Laws  Governing  Irrigation  in  California 530 — 585 

I.  Irrigation  in  General 532 — 534 

II.  Statutory  Laws  Adopted  by  Civil  Code  of  California. .  534 — 544 

III.  Regulation  and  Control  of  Ditch  Companies 544 — 550 

IV.  California  Irrigation  District  Law 550 — 574 

V.  Construction  of  California  Irrigation  District  Law.  .  .  574 — 585 

CHAPTER  XIII. 

N  E  VAD  A 58b — 598 

I.  Subject  Treated  in  General 586—589 

II.  General  Statutory  Enactments ....  589 — 597 

III.  Irrigation  District  Law 597 — 598 

CHAPTER  XIV. 

Washington 599 — 608 

I.  Subject  Treated  in  General 599—600 

II.  General  Statutory  Enactments 600 — 604 

III.  Irrigation  District  Law 605 — 608 

CHAPTER  XV. 

Kansas 609—622 

I.  Subject  Treated  in  General 609 — 611 

II.  General  Statutory  Enactments 611 — 613 

III.  An  Act  Regulating  the  Appropriation  and  Use  of 

Water;    Prohibiting  Unlawful  Use  Thereof;    Pro- 
viding for  the  Creation  of  Irrigation  Districts 613 — 622 

CHAPTER    XVI. 

UTAH 623—636 

I.  Subject  Treated  in  General 623 — 625 

II.  General  Statutory  Enactments 625 — 632 

III.  Irrigation  District  Law. 633 — 636 

CHAPTER   XVII. 

North  Dakota 637—643 

I.  vSubject  Treated  in  General 637 — 638 


X  TABLE    OF    CONTENTS — PART    TWO. 

Pages 

II.  General   Statutory   Enactments  of  the   Territory  of 

Dakota 638—640 

III.  General  Statutory  Laws  of  the  State 640—641 

IV.  Irrigation  District  Law 641 — 643 

CHAPTER  XVIII. 

South  Dakota 644—650 

I.  vSubject  Treated  in  General 644 — 645 

II.  General  Statutory  Enactments 645 — 646 

III.  Irrigation  District  Law 646 — 650 

CHAPTER  XIX. 

AVyoming 651 

I.  Subject  Treated  in  General 651—653 

II.  General  Statutory  Enactments 653 — 654 

III.  State  Control  of  Waters 654-667 

CHAPTER  XX. 

Oregon 668 — 678 

I.  Subject  Treated  in  General 668 — 669 

II.  General  Statutory  Enactments 669 — 678 

CHAPTER   XXI. 

Idaho 679-686 

I.  Subject  Treated  in  General 679 — 680 

II.  General  Statutory  Enactments 680 — 686 

XXII. 

Nebraska 687 — 690 

I.  Subject  Treated  in  General 687 

II.  General  Statutory  Enactments 687 — 690 

CHAPTER  XXIII. 

Texas 691 — 695 

I.  Subject  Treated  in  General 691 

II.  General  Statutory  Enactment 691 — 695 

CH.\PTER  XXIV. 

Arizona 696 — 700 

I.  Subject  Treated  in  General 696 — 697 

II.  General  Statutory  Enactments 697 — 700 


TABLE    OF    CONTENTS. — PART    TWO.  XI 

CHAPTER  XXV. 

Pages. 

New  Mexico 701—709 

I.  Subject  Treated  in  General 701—702 

II.  General  Statutory  Enactment 702—709 

CHAPTER  XXVI. 

MONTAN.\ "^^      ''^^ 

I.  Subject  Treated  in  General 710— 711 

II.  General  Statutory  Enactments 711— 7i5 

CHAPTER  XXVII. 

Colorado 716—739 

I.  Subject  Treated  in  General 716—717 

II.  Statutory  Enactments— State  Control  of  Water 717—737 

III.  Irrigation  Ditch  Corporations 737     739 


TABLE  OF  CASES  CITED. 


(The  r/ferences  are  to  the  sections.) 


Abel  vs.  Love,  301,  304. 

Action  vs.  Blundell,  48,  49,  59,  78. 

Adams  vs.  Barney,  56,  66. 

Adams  vs.  Manning,  287,  297. 

Adams  vs.  Pearse,  54. 

Agawan  Canal  Co.  vs.  Edwards,  76 

Alder   G.   M.  Co.  vs.  Hayes,   154, 

175- 
Alexander  vs.  Kerr,  288. 
Aldred's  Case,  250. 
Alexander  vs.  Woodford,  etc.,  Co., 

288. 
Aliso  Water  Co.  vs.  Baker,  94,  357. 
Alhambra    Addition     W.   Co.    vs. 

Richardson,  225.  256,  350. 
Allen  vs.  Joy,  94. 
Alta  Land,  etc.,  Co.,  vs.  Hancock, 

256,  284,  ?86,  294,  295,  296. 
Amador  Q.  M.  Co.  vs.  Davit,  357. 
American   Co.   vs.  Bradford.  154, 

173.    175.    180,    256,    280,    293, 

294,  295,  296,  329. 
American    Insurance   Co.    vs.   365 

Bales  of  Cotton,  125. 
American    Insurance  Co.  vs.  Car- 
ter, 134,  145- 
.•\mis  vs.  Smith,  146. 
Amoskea»  Mfg.  Co.  vs.  Goodale, 

75- 

Anaheim  Water  Co.  vs.  Semi- 
tropic  Water  Co.,  246,  256,  260, 
262,  273,  2S8,  295,  294,  296.  350. 

Aneto  vs.  Restano,  296. 


Anthony  vs.   Lapham,  56.    59,    66, 

67,  68,  69,  73. 
.•\riniond  vs.  Green  Bay  Co.,  54. 
Arkwright  vs.  Gell,  297. 
Armstrong  vs.  Larimer  Ditch  Co., 

556,  573- 
Arnold  vs.  Foot,  59,  61,  66.  6q,  73. 

76,  193- 

Arnold  vs.  Mund}',  54,89. 

Arredondo  Case,  128. 

Arthur  vs.  Case,  54. 

Ashby  vs.  Eastern  Railway  Co.,  64. 

Ashby  vs.  Hall,  140. 

Ashley  vs.  Pease,  59,  90. 

Ashley  vs.  Wolcott,  39,  43. 

Astron  vs.  Hammond,  208. 

Atchison  vs.  Peterson,  56,  89,  98. 
102,  113,  115,  140,  141, I59>  160, 
161,  168,  173,  174,  175,  181, 184, 
185,  187,  188,  189,  201,  205, 207, 
209,  210,  218,  219,  223,  225,  230, 
235.  237,  241,  245,  255,  332. 

Atlee  vs.  N.  W.  TTnioii  Packet  Co., 
41,  64. 

Attorney  General  vs.  Conservators 
of  the  Thames,  64. 

Attorney  General  vs.  Delaware 
Railway  Co.,  42,  54,  89. 

Attorney  General  vs. Great  Eastern 
Railway  Co.,  66. 

Attorney  General  vs.  Woods,  40. 

Atwood  vs.  Canan(lagua,46,  87. 

Austin  vs.  Rutland  Railway  Co., 
38.  87. 


XIV 


TABLE    OF    CASES    CITED. 


(The  references  are  to  the  sections.) 


Babcock  vs.  Herbert,  41  • 
Backus  vs.  Detroit,  54. 
Bagnellvs.Broderick,  127,  194,213. 
Bailey  vs.  Miltenberger,  54. 
Bailey   vs.    Platte  D.  C.  &  M.  Co., 

570. 
Bainbridge  vs.  Sherlock,  54. 
Baker  vs.  Bessejs  268. 
Baker  vs.  Brown.  68,  73,  527,  529. 
Baker  vs.  Lewis,  42,  54. 
Baldwin  vs.  Calkins,  75,  294. 
Ball  vs.  Herbert,  53. 
Ball  vs.  Kehl,  150,  193,  296. 
Ball  vs.  Slack,  52,  54. 
Ballard  vs.  Tomlinson,  298. 
Balston  vs.  Bensted,  92,  256,  294. 
Baltimore  vs.  McKin,  54. 
Bangor  vs.  Lansil,  39. 
Banghart  vs.  Flummerfelt,  93. 
Bank  of  North  America  vs.  Miller, 

268. 
Bankliead  vs.  Brown,  94. 
Banks  vs.  Ogden,  55,  88. 
Bardwell  vs.  Ames,  54,  91. 
Barker  vs.  Richardson,  92. 
Barkley  vs.  Tieleke,  35,   163,   173, 

174,  223,  233,  253,  254,  259,  264, 

332. 

Barlow  vs.  Lambert,  201. 

Barnard  vs.  Hinkley,  41. 

Barnes  vs.  City  of  Racine,  54. 

Barnes  vs.  Haynes,  92. 

Barnes  vs.  Marshall,  350. 

Barnes  vs.  Sabron,  39,  43,  106,  135, 
154,  156,  161,  173,  175,  177, 
178,  185,  186,  204,  207,  225, 
227,  230,  231,  232,  236,  238, 
249,  253,  274,  331,  397. 

Barney  vs.  Keokuk,  54,  82. 

Barney  vs.  Winona,  etc.,  Ry.  Co., 
141. 

Barnham  vs.  Freeman,  264. 

Barham  vs.  Hostetter,  323,  327. 


Barrett  vs.  Parsons,  76. 

Barton  vs.  Richardson,  54. 

Barrows  vs.  Fox,  342. 

Basey  vs.  Galligher,  89,  102,  113, 
115,  140,  141,  147,  150,  156, 
173,  185,  187,  188,  189,  204, 
207,  209,  219,  226,  235,  237, 
241. 

Bassett  vs.  Salisbury  Mfg.  Co.,  39, 

75'^ 

Batavia  Mfg.  Co.  vs.  Newton  Wa- 
gon Co.,  67. 

Bates  vs  Brown,  127. 

Bates  vs.  111.  Cent.  Ry.  Co.,  58,  82. 

Bates  vs.  Smith,  39. 

Bates  vs.  Wilson,  565. 

Bateman  vs.  Hussey,  75. 

Bay  City  Gas  Light  Co.  vs.  Indus- 
trial Works,  54. 

Bealy  vs.  Shaw,  62,  79,  80,  81,  92, 
250,  256,  294. 

Beal  vs.  New  Mexico,  134. 

Bear  River  and  Auburn  Water  and 
Mining  Co.  vs.  New  York 
Mining  Co.,  9,  99,  173,  225, 
249,  250,  251,  330. 

Bear  River  Co.  vs.  Boles,  182,  333. 

Bear  vs.  Hoffman,  63. 

Bear  Lake  and  R.  W.  W.  and  Irr. 
Co.  vs.  Ogden,  484. 

Beard  vs.  Murphy,  39. 

Beaver  vs.  Reed,  93. 

Beckett  vs.  Midland  Ry.  Co.,  64. 

Beecher  vs.    Wetherby,    124,    126, 

133,  134,  139- 
Beidelman  vs.  Foulk,  56,  93. 
Beissell  vs.  Scholl,  59,  67. 
Beekman  vs.  Ry.  Co.,  357. 
Belk  vs.  Megher,  219. 
Belknap  vs.  Trimble,  154. 
Bell  vs.  Cough,  54,  89. 
Bell  vs.  Sausalito  Land  &   Ferry 

Co.,  268. 
Bell  vs.  Quebec,  64. 
Benson  vs.  Connors,  39. 


TABLE    OF    CASES    CITED 


XV 


(The  references  are  to  the  sections.) 


Benson  vs.  Morrow,  55. 

Benjamin  vs.  Storr,  64. 

Berry  vs.  Carle,  42,  54. 

Berry  vs.  Snyder,  52,  54. 

Bickell  vs.  Polk,  54. 

Biddle  Boggs  vs.  Merced  Min.  Co., 

109,  260,  261,  262,  288. 
Biglow  vs.  Battle,  91. 
Bileu  vs.  Paisle}',  151. 
Binney's  Case,  42,  54. 
Bird  vs.  Smith,  54. 
Bissell  vs.  Foss,  302,  303. 
Bissell  vs.  Grant,  267. 
Bissell  vs.  Henshaw,  260. 
Bissell  vs.  Southworth,  54. 
Black  vs.  Bally mera  Com.,  48. 
Blackburn  vs.  Somers,  294. 
Blaisdell  vs.  Stevens,  323,  327. 
Blake  vs.  Clark,  268. 
Blanc  vs.  Klumpe,  333. 
Blanchard  (ex  parte),  201. 
Blanchard   vs.  Baker,    59,    63,   66, 

67,  68,  69,  72,  73,  75,  173,  193. 
Blanchard  vs.  Sprague,  196. 
Blessing  vs.  Blair,  73. 
Bliss  vs.  Johnson,  279,  350. 
Bliss  vs  Kennedy,  66,  80,  173. 
Bliss  vs.  Rice,  75. 
Blood  vs.  Light,  133. 
Blood  vs.  Nashua  Ry.  Co.,  54. 
Bloodgood   vs.  Mohawk  Ry.  Co., 

94. 
Bloom  vs.  West,  270. 
Bloomfield  vs.  Johnson,  53,  86. 
Blumleigh  vs.  Dawson,  75. 
Boatwright  vs.  Bookman,  54. 
Board   of   Directors  Modesta   Irr. 

Dist.  vs.  Tregea,  368,  390,  393, 

394- 
Board  of  Directors  Middle  Kittitas 

Irr.    Dist.    vs.    Peterson,    389, 

423- 
Bolliver   Mfg.    Co.    vs.    Neponset 

Mfg.  Co.,  75,92. 
Bolton  vs.  Bensped,  78,  79. 


Bolster  vs.  Cataline,  334. 
Boman's  Devosees  vs.  Latham,  59. 
Bonds  of  Maderia  Irr.  District,  Iti 

re,  368,  389,  391,  392,  393. 
Boom  Co.  vs.  Patterson,  94. 
Boorman  vs.  Sunnuchs,  82,  87. 
Booth  vs.  Driscoll,  78. 
Booth  vs.  Woodbury-,  94. 
Boscawan  vs.  Canterbury,  54. 
Boston  vs.  Lecraw,  64. 
Boston  vs.  Richardson,  64. 
Boston  Water  Power  Co.  vs.  Gray, 

91- 

Boston  Water  Power  Co.  vs.  Bos- 
ton Railway  Co.,  94. 

Bouldin  vs.  Massie,  143. 

Bowen  vs.  Team,  297. 

Bowers  vs.  Hill,  297. 

Bowlsby  vs.  Speer,  39. 

Bowman  vs.  Cudworth,  260. 

Bowman  vs.  Wathen,  92. 

Boyer  vs.  Swett,  201. 

Boynton  vs.  Longley,  294,  295. 

Brace  vs.  Yale,  54,  274,  288. 

Bealy  vs.  Shaw,  59. 

Bradley  vs.  Harkness,  259,  264.  301, 
302,  303,  305,  306. 

Bradford  vs.  Cressey,  54. 

Branch  vs.  Doane,  75,  92. 

Branch  Turnpike  Co.  vs.  Super- 
visors of  Yuba  Co.,  334. 

Brastow  vs.  Rock  port,  87. 

Brewster  vs.  Striker,  288. 

Bridges  vs.  Purcell,  93. 

Bright  Star,  The,  42. 

Bristoll  vs.  Carroll  Co.,  82.. 

Bristow  vs.  Cormican,  53,  86. 

Broadax  vs.  Baker.  46. 

Broadbent  vs.  Ranisbotham,  39, 
43.  143- 

Broder  vs.  Natoma  Water  Co.,  98, 
iio.  III,  113,  115,  140,  141,  148. 
156,  173.  175.  185.  186,  188,  189, 
198,  204,  207,  209,  219,  226,  235. 

Bronson  vs.  Kukuk,  208. 


XVI 


TABLE    OF    CASES    CITED. 


[The  references  are  to  the  sections.) 


Brown  vs.  Ashley,    286,   298,    329, 

397- 
Brown  vs.  Best,  56,  59,  294. 
Brown  vs.  Bush,  59. 
Brown  vs.  Chadbourne,  54. 
Brown  vs.  Clements,  136,  260. 
Brown  vs.  Evans,  260,  262. 
Brown  vs.  Gugy,  64. 
Brown  vs.  Huger,  208. 
Brown  vs.  Illius,  48,  78. 
Brown  vs.  Kennedy,  54,  90. 
Brown  vs.  Mullin.  173,  175,  230,  246 

334,  345- 
Brown  vs.  Scofield,  41. 
Brown  vs.  Smith,  167,  180,  182. 
Brown  vs.  United  States,  217. 
Brubaker  vs.  Paul,  42. 
Bruger  vs.  Butler,  268. 
Brush  vs.  Ware,  136. 
Bryan  vs.  Forsyth,  208. 
Bryan  vs.  Kennett,  131. 
Bryant  vs.  Whistler,  93. 
Buccleuch  vs.  Cowan,  62. 
Buccleuch   vs.  National  Board  of 

Public  Works,  64. 
Bucki  vs.  Cone,  40. 
Buddington  vs.  Bradley,  56,  59. 
Buffalo   Pipe   Line  Co.  vs.  N.  Y. 

Railway  Co.,  54. 
Buffum  vs.  Harris,  39,  43,  45- 
Bugh  vs.  Rominger,  565. 
Bullard  vs.  Saratoga  Mfg.  Co.,  75. 
Bullock  vs.  Rouse,  139. 
Bullock  vs.  Wilson,  54. 
Bulstrode  vs.  Ilall,  51. 
Burbank  vs.  Ellis,  140. 
Burbank  vs.  W.  Walker  R.  D.  Co., 

324- 

Burlington  Railway  Co.  vs.  John- 
son, 141,  209. 

Burnett  vs.  Whiteside,  163,  246. 

Burnham  vs.  Freeman,  224,  264, 
270. 

Burnham  vs.  Starkey,  141,  186,  209 

Burroughs  vs.  Saterlee,  79. 


Butte  Canal  Co.  vs.  Vaughn,   161, 

163,  173,  179,  219,  227,  230,  246, 

254,  255. 
Butte  T.  M.  Co.  vs.  Morgan,   154. 

223,  225,  247,  248,  343- 
Butz  vs.  Northern  Pacific  Railway 

Co.,  126. 
Byrne  vs.  Crafts,  154.  155,  179'  232, 

237- 

c. 

Cain  vs.  Young,  140. 

California  and  Oregon  L.  Co.  vs. 

Munz,  138. 
Calkins  vs.  Copely,  263. 
Calvin  vs.  Burnett,  294. 
Cambre  vs.  Cohn,  83. 
Campbell  vs.  Bear  River  Co..  244, 

3U,  324- 
Campbell  vs.  Smith,  193. 
Campbell    vs.    Shivers,    260,    262, 

301. 
Campbell  vs.  West,  253. 
Campbell  vs.  Wilson,  92. 
Canal   Appraisers  vs.   People,  38, 

54,  193-    • 
Canal  Commissioners  vs.  People, 

38.  42,  52,  54,  87,  89. 
Canal  Trustees  vs.  Haven,  54. 
Cannon  vs.  Hargadon.  43. 
Carbrey  vs.  Willis,  79. 
Carhart  vs.  Auburn  Gas  Light  Co., 

42. 
Carli  vs.  Still  Water  Ry.  Co.,  64. 
Carlisle  vs.  Cooper,  294. 
Carpenter  vs.  Thurston,  260. 
Carpentiers  vs.  Webstei,  201. 
Carrol  vs.  Safforn,  208,  214. 
Canson  vs.  Blazer,  54,  201. 
Carson  vs.  Wood,  327. 
Carter  vs.  Murcot,  89. 
Carter  vs.  Thurston,  54. 
Caruthers  vs.  Pemberton,.i35,  175, 

230. 
Carey  vs.  Daniels,  56,  59,  67,  76. 


TABLE   OF    CASES   CITED. 


xvu 


(The  references  are  to  the  sections.) 


Carroll  vs.  Wood,  551. 
Casey  vs.  Ingloes,  54. 
Cash  vs.  Thornton,  556. 
Castello  vs,  Landwehr,  41. 
Caster  vs.  Tide  Water  Co.,  94. 
Castner  vs.  The  Dr.  Franklin,  55. 
Catlin  Canal  Co.  vs.  Best,  315. 
Cator     vs.    Lewishani     Board    of 

Works,  250. 
Cave  vs.  Crafts,  89,   148,   156,  256, 

267,  268,  269,  294. 
Cedar    Rapids    Railway    Co.    vs. 

Courtwright,  137. 
Central  Irr.  Dist.    vs.  De   Lappa, 

389,  390,  393. 
Chaplain  Ry.  Co.  vs.  Valentine,  87. 
Chandler  vs.  Ilowland,  76. 
Chapman  vs.  Haskins,  54. 
Chapman  vs.  Kimball,  54. 
Chapman  vs.  Oshkosh,  64,  88. 
Chapman  vs.  Palmer,  327. 
Chapman   vs.   Thames   Mfg.   Co., 

75- 
Charnock  vs.  Rose,  173,  350. 
Chase  vs.  Baker,  83. 
Chase  vs.  Silverstone,  49,  78. 
Chasemore   vs.    Richards,    39,  48, 

49.  56,  58,  67,  70,  71,  78,  79,  80. 
Chatfield  vs.  Wilson,  49,  66,  75. 
Chauvert  vs.  Hill,  293,  296. 
Chenandago  Bridge  Co.  vs.  Paige, 

54- 
Cherokee  Nation  vs.  Georgia,  125, 

126,  133. 
Cherokee  Tobacco,  The,  133. 
Chiatovich  vs.  Davis,  173,  230,  264. 
Chidester  Consolidated  Ditch  Co., 

244,  314- 
Chicago  vs.  Robbins,  146. 
Chicago  vs.  McGinn,  40,  41,  54. 
Chicago  Railway  Co.  vs.  Morrow, 

39- 
Chicago     City    Railway     Co.    vs. 

People,  93. 
Chicago  Railway  Co.  vs.  Stein,  64. 


Chotard  vs.  Pope,  144,  219. 
Churchill  vs.  Bauman,  326. 
Citizens      Bank      vs.      Nantucket 

Steamboat  Co.,  316. 
City  of  Fresno  vs.  Fresno  Canal  & 

Irrigation  Co.,  333. 
City  of  Mobile  vs.  Eslava,  136. 
City  of  New  Orleans  vs.  D' Armas, 

125. 
City  of  Springville  vs.  F'ulmer,  446. 
Clapham  vs.  Mogle,  319. 
Claremont  vs.  Carlton,  54,  90. 
Clark  vs.  Brown,  133. 
Clark  vs.  Campeu,  54. 
Clark  vs.  Clark,  201. 
Clark  vs.  Peckham,  64. 
Clark  vs.  Smith,  127,  133,  134,  146. 
Clark  vs.  Titus,  140. 
Clark  vs.  Willet,  224,  225,  245,  253, 

264. 
Clement  vs.  Burns,  54,  87. 
Clements  vs.  Warner,  143,  144. 
Cleveland  Railway  Co.  vs.  Ball,  64. 
Clinton  vs.  Englebrecht,  127, 
Clough  vs.  Wing,  16,  42,  108,  173. 
Clute  vs.  Fisher,  54,  87. 
Clyne  vs.  Benicia  Water  Co.,   269. 
Cobb  vs.  Bennett,  41. 
Cobb  vs.  Davenport,  46,  54,  87. 
Cobb  vs.  Smith,  54. 
Cockrell  vs.  McQuinn,  54. 
Coffin  vs.  Left  Hand  Ditch  Co.,  99, 

148,  154,  156,  173.  204,  205,  228, 

233,  556,  558,  569.  571- 
Coffman  vs.  Robbins,  56,  59,  273, 

274,  278,  282. 
Coffman  vs.  Griesemer,  39. 
Cohens  vs.  Virginia,  145. 
Cohn  vs.  Wausau  Boom  Co.,  54. 
Coker  vs.  Simpson,  326,  331. 
Colburn  vs.  Richards,  67,  69,  68,73. 
Colchester  vs.  Brooke,  41,  51,  53, 

89. 
Cole  vs.  Logan,  238.  239,  254,  258, 

332. 


XVlll 


TABLE    OF    CASES    CITED. 


(The  references  are  to  the  sections.) 


Cole  vSilver  Mining  Co.  vs.  Vir- 
ginia Mining  Co.,  48,  79. 

Collins  vs.  Chartiers,  79. 

Collins  vs.  Bendury,  54. 

Collins  vs.  Slade,  91. 

Colman  vs.  Chadwick,  49. 

Colorado  C.  R.   Co.  vs.  Allen,  557. 

Colorado  Land  &  Water  Co.  vs. 
Rocky  Ford  C.  R.  L.  &T.  Co., 
255.  284. 

Columbia  Mining  Co.  vs.  Holter, 
154,  157,  158,  159.  184,  248. 

Colvin  vs.  Burnett,  92,  195,  256. 

Combs  vs.  Agricultural  Ditch  Co., 
150,  151,  152,  153.  164,  166,  167, 
173,  228,  235,  237,  238,  266,  316, 

317,  335.  337,  572. 
Commegys  vs.  Vasse,  128. 
Commonwealth  vs.  Alger,  54,  87, 

89. 
Commonwealth  vs.  Chapin,  40,  41, 

54,  83,  84. 
Commonwealth  vs.  Essex,  84. 
Commonwealth  vs.  Tiffany,  87. 
Commonwealth  vs.    Vincent,    38, 

40,  54,  87- 
Commissioners  vs.  Withers,  54. 
Conant  vs.   Jones.    161,    164,    167, 

239,  512. 
Concord  vs.  Norton,  288. 
Conger  vs.  Weaver,  99,   109,   no, 

158,  159.  173- 
Conkling    vs.    Pacific    Imp.    Co., 

253,  329- 
Commissioners  vs.   Erie    Railway 

Co.,  42. 
Commissioners    Canal    Fund    vs. 

Kemphall,  54. 
Commissioners   vs.    Reading   Ry. 

Co.,  42. 
Cook  vs.  Burlington,  64. 
Cook  vs.  Hull,  67,  68,  73. 
Cook  vs.  C.  B.  &  Q.  Ry.  Co.,  93. 
Cook  vs.  McClure,  82. 
Cook  vs.  Stearns,  91. 


Coolidge  vs.  Curtis,  146. 
Coolidge  vs.  Learned,  92. 
Coonradt  vs.  Hill,  256,  268. 
Cooper  vs.  Hamilton,  334. 
Cooper  vs.  Roberts,  139. 
Cooper  vs.  Smith,  54. 
Courtright  vs.   C.    R.    &    M.    Co., 

207. 
Coovert  vs.  O'Connor.  42, 52,  54, 89. 
Cornelius  vs.  Glenn,  54. 
Cornelius  vs.  Kessel,  208. 
Corning  vs.  Troy  Iron  Co.,  58,  59, 

63,  193,  321.  329- 
Corning  vs.  Gould,  297. 
Correa  vs.  Frietas,  154. 
Coryell  vs.  Cain,   159,  162. 
Coswin  vs.  Railway  Co.,  326. 
Countess  of  Rutland  vs.    Bowles, 

59,  80. 
County  of  St.  Clair  vs.  Lovington, 

82. 
Cotton  vs.  Poasett  Mfg.  Co.,  294. 
Courtwright  vs.  Bear   River   Co., 

251,  333- 
Covington  vs.  Becker,  135. 
Covington  vs.  Senfert,  268. 
Cowell  vs.  Colorado  Springs,  208. 
Cowles  vs.  Shaw,  334. 
Cowell  vs.  Thayer,  92. 
Cowles  vs.  Kidder,  75,  80,  173. 
Cox  vs.  Clough,  256,  294,  295. 
Cox  vs.  Garrahan,  138. 
Cox  vs.  Mathews,  80,  81. 
Cragin  vs.  Powell,  138,  140. 
Craig  vs.  Radford,  155. 
Crall   vs.    Board   of    Directors    of 

Poso  Irr.   Dist.,  368,  390,  392, 

393- 
Crane    vs.    Randall,   135,   173,  252, 

332,  333- 
Crane  vs.  Windsor,   135,   173,  252, 

332,  333- 
Crandall  vs.   Woods,  67,   106,  162, 
191,  256,  275,  280,  293,  295,  296, 
329- 


TABLE    OF    CASES   CITED. 


XIX 


(The  references  are  to  the  sections.) 


Crary  vs.  Campbell,  306 . 
Creighton  vs.  Keweah  Canal  &  Irr 

Co.,  108,  331,  350. 
Creighton  vs.  Evans,  59. 
Crest  vs.  Jack,  28S. 
Crewson  vs.  Grand  Trunk  Ry.  Co. 

39- 
Crill  vs.  Rome,  54. 
Crisman  vs.  Heiderer,  244,  245,  557. 
Crittenden  vs.  Field,  268. 
Crocker  vs.  Bragg,  75. 
Crocker  vs.  Covvper,  91. 
Cronin  vs.  Gore,  288, 
Crooker  vs.  Benton,  267. 
Cross  vs.  DeValle,  155. 
Cross  vs.  Lewis,  92. 
Cross  vs.  Kitts,  285.  298,  341. 
Crossley  vs.  Lightowler,    56,   294, 

321,  329- 
Cummings  vs.  Peters,  94. 
Cunningham  vs.  Ashley,  136. 
Currier  vs.  West,  42. 
Curtis  vs.  Jackson,  63,  297. 
Curtis  vs.  Kesler,  42. 
Curtis  vs.  Le  Grange  H.  W.  Co., 

262. 

Cushman  vs.  Highland  Ditch  Co., 

571- 

D. 

Dalrymple  vs.  Mead,  40,  54. 
Dalton  vs.  Bowker,   162,   173,   223, 

233.  264,  397. 
Dalton  vs.  Rentaria,  260. 
Danforth  vs.  Adams,  288. 
Dan  forth  vs.  Wear,  136. 
Daniel  Ball,  The,  40. 
Daniels   vs.  Landsdale,   184,     213, 

2x9. 
Daniels  vs.  North,  92. 
Dark  vs.  Johnson,  93. 
Darst  vs.  Rush,  244. 
Darwin  vs.  Upton,  92. 
Davenport  vs.  Lamb,  141. 
Davenport  vs.  Thurpin,  260. 
Davis  vs.  Brigham,  92. 


Davis  vs.  Buttler,  264. 

Davis  vs.  Fuller,  56,  173,  193. 

Davis  vs.  Gale,  150,  151,  154,  157, 
159,  163,  164,  173,  175,  179,  183, 
225,  230,  231,  233,  248,  253,  255, 
256,  269,  260,  264. 

Davis  vs.  Getchell,  56,  59,  73. 

Davis  vs.  Jenkins,  41. 

Davis  vs.  Mason,  146. 

Davis  vs.  Mayor  of  New  York, 
42. 

Davis  vs.  Police  Jury  of  Concordia, 
128. 

Davis  vs.  Wannamaker,  557. 

Davis  vs.  Winslow,  41. 

Davison  vs.  Hutchinson,  61. 

Dawson  vs.  James,  54. 

Day  vs.  Da^^  54. 

Day  vs.  Railway  Co.,  54. 

Day  vs.  Waldron,  297. 

Dean  vs.  Davis,  389. 

Decker  vs.  Howell,  301,  303,  306. 

Decker  vs.  Perry,  373. 

Dedrick  vs.  Wood,  42. 

Deerfield  vs.  Arms,  82. 

Deffebach  vs.  Hawkes,  140. 

Delaney  vs.  Boston,  42,  54. 

Delaphine  vs.    Chicago    Ry.    Co., 

54,  57,  64,  87,  88. 
Delaware  Canal  Co.  vs.  Terry,  75. 
Delaware  Ry.  Co.  vs.  Stump,  41. 
Delhi  vs.  Youmans,  49,  78. 
Delossus  vs.  United  States,  131. 
DeNechochea  vs.  Curtis,   156,  229. 
Denver    City     Irrigation   Co.    vs. 

Middaugh,  572. 
Denver  U.  O.  R.  Co.  vs.  Lamborn, 

5.57. 
DeVilemonte's  Case,  130. 
Devonshire  vs.  Pattinson,  38,  52, 

53.  86. 
DeWitt  vs.  Harvey,  265. 
Dexter  vs.  Frey  Aqueduct  Co.,  78. 
Dey  vs.  Stetson,  94. 
Dick  vs.  Bird,  150,  156,  294,  295. 


XX 


TABLE    OF    CASES    CITED. 


(The  references  are  to  the  sections.) 


Dick  vs.  Caldwell,   135,   150,    151, 

294,  295. 
Dickens  vs.  Mahana,  139. 
Dickinson  vs.  Grand  Junction,  etc. 

Co.,  48,  49.  56,  59.  78,  79- 
Dickinson  vs.  Worcester,  39,  45. 
Diedrick  vs.  North   Western   Ry. 

Co.,  41,  54.  64,  87,  88. 
Dilling  vs.  Murry,  56. 
Dodge  vs.  County  Commissioners, 

64. 
Dodge   vs.  Harden,    139,  163,  253, 

256,  259,  264,  294. 
Doe  vs.  York,  89. 
Doddridge  vs  Thompson,  143. 
Don  vs.  Wright,  90. 

Donnell  vs.  Humphreys,  267,  269, 
Dorlar  vs  Cress,  288. 
Dority  vs.  Dunning,  91,  297. 
Dorr  vs.  Hammond,  154,  157,  233, 

257,  294,  564,  565- 
Dougherty  vs.  Bunting,  42. 
Dougherty  vs.  Creary,  304. 
Dougherty  vs.  Haggin,  161,  175. 
Doughty  vs.  Conover,  84. 
Downing  vs.  More,  556,  557. 
Doyle  vs.  San  Diego  L.  &  T.  Co., 

264,  285. 
Drake   vs.    Earhart,  226,  232,  235, 

240,  512. 
Dred  Scott  vs.  Sanford,  126. 
Drew  vs.  Hicks,  183,  293,  333. 
Drexel  vs.  Berney,  288. 
Dubuque  Ry.  Co.  vs.  Des  Moines 

Ry.  Co.,  133. 
Dubuque   Ry.  Co.  vs.    Litchfield, 

138. 
Dumph)'  vs.  Kleinschmidt,  145. 
Dumout  vs.  Kellogg,  67,  108. 
Durant  vs.  Martin,  218. 
Durgin  vs.  Leighton,  92. 
Duryea  vs.  Burt,  301,  302,  303,  304, 

305,  306. 
Dutchess  of  Kingston's  Case,  288. 
Dutton  vs.  Strong,  55,  64. 


Dwight  Printing   Co.   vs.  Boston, 

250. 
Dwyer  vs.  Rich,  53. 
Dyer  vs:  Depui,  92,  297. 
Dyke  vs.  Caldwell,  535. 
Dyson  vs.  Bradshaw,  264. 

E. 

Earhart  vs.  Boaro,  168. 

Earl  vs.  Hart,  39,  45. 

Eaton  vs.  Larimer  &  W.  Res.  Co., 

572. 
Eddy    vs.    Simpson,    39,    59,    104, 

163,  254,  259,  275,  281. 
Edgar  vs.  Stevenson,  173,  177,  180, 

282. 
Edwards  vs.  Agle,  87. 
Elder  vs.  Burrus,  54. 
Eldridge  vs.  Knott,  109. 
Ellis   vs.  Pomeroy    Imp.  Co.,  213^ 

219,  228,  417. 
Ellis  vs.  Carey,  42,  54, 
Ellis  vs.   Tone,   67,    78,  163,  273, 

275.  350. 
Ellison   vs.    Jackson    Water   Co., 

163. 
Elliot  vs.  Fitchburg  Ry.  Co.,  63, 

66,  67,  73,  76,  108,  193. 
Elliot  vs.  Whitmore,  160,  255,  288, 
Elmendorf  vs.  Taylor,  145. 
Elms  vs.  Los  Angeles,  150. 
Elmslee  vs.  Young,  144. 
Emans  vs.  Turnbull,  82. 
Embrey  vs.  Owens,  56,  61,  62,  67, 

70,  76,  193,  250,  264. 
Embury  vs.  Connor,  94. 
Emery  vs.  Lowell,  39. 
Emery  vs.  Raleigh  Ry.  Co.,  92. 
Empire    M.    C.    Co.    vs.    County 

Treasurer,  556. 
Emporia  vs.  Soden,  49. 
Enfield   Bridge   Co.,  vs.  Hartford 

Ry.  Co.,  54- 
Ensminger  vs.  People,  54,  79- 
Escanaba  Co.  vs.  Chicago,  40. 


TABLE    OF    CASES    CITED. 


XXI 


(The  references  are 

Eulrich  vs.  Richter,  39,  45.  j 

Evans  vs.  Cook,  201. 

Evans  vs.  Ross,  256,  294.  | 

Evans  vs.  Merriweather,'  56,  59, 
65,  66,  68;  69,  76,  80,  173. 

Ewart  vs.  Belfast  Poor  Law  Guar- 
dians, 79. 

Ewing  vs.  Colquhouii,  53. 

F. 

Fabian   vs.   Collins,    135,  154,  175, 

233,  259,  260,  264,  332. 
Fagan  vs.  Armistead,  54. 
Fairfax's     Devosee    vs.    Hunters 

Lessee,  155. 
Farley  vs.  Spring  Valley  M.  &  Ir. 

Co.,    106,    210,    211,    212,    213, 

214,  219. 
Farmers  High  Line  Canal  Co.  vs. 

North,  167,   173,  223,  227,  228, 

311- 
Farmers  High  Line  Canal  Co.  vs. 
Southworth,  152,  153,  164,  235, 

556,  559.  564. 
Farmers  High  Line  Co.  vs.  Ukiah 

W.  Co.,  223,  267,  269. 
Farmers  H.  C.   R.  Co.  vs.  White, 

562. 
Farmers  L  D.  Co.  vs.  Agricultural 

D.  Co.   572. 
Farnsworth   vs.    Minn.    Ry.    Co., 

127. 
Farrar  vs.  Cooper,  263. 
Farrell  vs.  Richards,  73,  76,  511. 
Faull  vs.  Cooke,  286,  293. 
Fay  vs.  Salem  Aqueduct  Co.,  87. 
Felix  vs.  Los  Angeles,  150, 
Ferguson  vs.  Miller,  265. 
Felger  vs.  Robinson,  40,  41. 
Fellows  vs.  Blacksmith,  126. 
Fentiman  vs.  Smith,  93. 
Ferrea  vs.  Knipe,  59,  73,  188,  273, 

275.  280,  330. 
Ferry  vs.  Street,  139. 
Finley  vs.  Simpson,  319. 
Finlonson  vs.  Porter,  91. 


to  the  sections.) 

Fisher  vs.  Haldelan,  54,  146. 

Fitzell  vs.  Leaky,  269,  303. 

Fitzgerald  vs.  Urton,  109. 

Fitzwalter's  Case,  51. 

Fitz  vs.  Hobson,  64. 

Flagg  vs.  Worcester,  39,  45. 

Flagstaff   Silver   Mining    Co.    vs. 

Tarbet,  89. 
Flannigan  vs.  Philadelphia,  4i,54> 

98. 
Flat  River,  etc.,  Co.  vs.  Kelly,  28S. 
Flege  vs.  Carej',  260. 
Flemming  vs.  Davis,  68,  73,  527. 
Flemming  vs.  Hull,  94. 
Fletcher  vs.  Peck,  127,  133,  207. 
Fletcher  vs.  Phelps,  38,  54,  87. 
Fletcher  vs.  Thunder   Bay   Boom 

Co.,  54- 
Flickenger  vs.  Shaw,  244. 
Flint  P.  &  M.  Ry.  Co.  vs.  Gordon, 

219. 
Flora  vs.  Carbean,  92. 
Floyd    vs.    Boulder   Flume  &  M. 

Co.,  551. 
Foot  vs.  New  Haven  Co.,  93. 
Forbes  vs.  Gracey,  102,   113,   115, 

138,  141,  187,  207,  209. 
Foreman  vs.  Boyle,  323,  326,  327. 
Foster  vs.  Neilson,  125,  126,  12S. 
Forsyth  vs.  Smalle,  87. 
Foster  vs.  Spring  Creek  Co.,  150. 
Foster  vs.  Park  Comm.,  94. 
Ft.    Leavenworth,    etc..    Railway 

Co.  vs.  Low,  127. 
Ft.  Morgan   Land  Co.    vs.    South 

Platte  Ditch  Co.,  152,  164,  167, 

173- 
Ft.  Plain  Bridge  Co.  vs.  Smith,  54. 
Fox  River  Flour  Co.  vs.  Kelly,  287. 
Fraler  vs.  Seers  Union  Water  Co., 

324- 
Fra/.ier  vs.  Brown,  79. 
Frank  vs.  Hicks,  265,  266,  269,  270, 

488. 
Franklin  vs.  I'isk,  43. 
Frankum  vs.  l'"alni()Uth,  59. 


XXll 


TABLE    OF    CASES    CITED. 


(The  references  are  to  the  sections.) 


Freary  vs.  Cook,  83. 
Frederick  vs.  Dickey,  256. 
Freeman  vs.  Wicks,  287,  297. 
Fremont  vs.  United  States,  130. 
Fresno  Canal  Co.  vs.  Dunbar,  267. 
French  vs.  Bankhead,  54. 
French  vs.  Baintree  N.  Co.,  264. 
French  vs.  Fyan,  138. 
French   Hoek   Comni.   vs.    Hugo, 

297. 
French  vs.  Spencer,  219. 
Frey  vs.  Lowden,  301,  337,  345. 
Frink  vs.  Branch,  268. 
Frisbee  vs.  Whitney,  124,  142,  212, 

213,  219. 
Frost  vs.  Saratoga,  etc.,  Co.,  260. 
Fuller  vs.  Mining  Co.,  265. 
Fulmer  vs.  Williams,  54. 
Fulton  vs.  Frandolig,  529. 
Fulton  vs.  Swan  River,  etc.,  Co., 

154,  248. 
Fussell  vs.  Gregg,  143. 

G. 

Gallagher  vs.  Basey,  322,  332. 

Gaines  vs.  Thompson,  138. 

Gaines  vs.  Nickolson,  139. 

Gale  vs.  Tuolumne  W.  Co.,  173 
225. 

Gallagher  vs.  Montecito  Valley 
Water  Co.  233,  248,  293. 

Galveston  vs.  Menard,  89. 

Gannon  vs.  Hargedon,  39,  45. 

Gannocchio  vs.  Amador  C.  &  M. 
Co.,  267. 

Gardner  vs.  Newberg,  56,  59,  357. 

Gardner  vs.  Trustees,  193. 

Garwood  vs.  New  York  Central 
Railway  Co.,  108. 

Gates  vs.  Northern  Pacific  Rail- 
way Co.,  41. 

Gause  vs.  Baker,  83. 

Gaved  vs.  Martyn,  297. 

Gavit's  Administrators  vs.  Cham- 
bers, 39,  54,  90. 

Gearson  vs.  Barrack,  512. 


Geddis  vs.  Parish,  39,  45,  156,  213, 

219,  228,  269,  417. 
Georgetown  vs.  Alexander  Canal 

Co.,  42. 
Gerris  vs.  Clow,  82. 
Gerrish  vs.  Brown,  41. 
Gerrish  vs.  New  Market  Mfg.  Co., 

61,  75,  76,  193. 
Gennessee  Chief  vs.  Fitzhugh,  40. 
Gentile  vs.  State,  54. 
Gibbs  vs.  Williams,  39,  43,  45. 
Gibson  vs.  Brockway,  268. 
Gibson  vs.  Puchta,  150. 
Gibson  vs.  Chouteau,  134,  147,  194, 

213,  214,  219. 
Gifford  vs.  Winnipesseogee  Lake 

Co.,  92. 
Gillett  vs.  Johnson,  45,  56,  59,  73, 

93- 
Gilliam  vs.  Bird,  54. 
Gilman  vs.  Tilton,  80,  173. 
Gillham  vs.  Madison  Ry.  Co.,  39. 
Gimmy  vs.  Culverson,  142,  218. 
Gladfelter  vs.  Walker,  250. 
Gliddenvs.  U.  P.  Ry.  Co.,  189. 
Gluckauf  vs.  Reed,  264. 
Golden  Canal  Co.  vs.  Bright,  173, 

317,  556,  561,  563,  565- 
Gold  Hill  Mining  Co.  vs.  Ish,  185. 
Goodsell  vs.  Lawson,  54. 
Goodwin  vs.  Thompson,  54. 
Goodwin  vs  Gilbert,  319. 
Goodtitle  vs.  Baldwin,  109. 
Gormley  vs.  Uthe,  138,  143. 
Gouverneur  vs.  National  Ice  Co., 

87. 
Goff  vs.  Bell,  54. 
Gould  vs.  Boston  Duck  Co.,  59,  67, 

80. 
Gould  vs.  James,  83. 
Gould  vs.  Hudson  Ry.  Co.,  64. 
Gould  vs.  Stafford,   275,   277,   280, 

284,  286. 
Graff  vs.  Baltimore,  94. 
Graham  vs.  Hastings  Ry.  Co.,  217 


TABLE    OF    CASES    CITED. 


XXlll 


(The  references  are  to  the  sections.) 


Grand  Rapids  Booming  Co.  vs. 
Jarvis,  54. 

Grangei"  vs.  Aver}-,  54. 

Grant  vs.  Davenport,  54. 

Grant  vs.  Kugler,  61. 

Graves  vs.  Sholl,  75. 

Gray  vs.  Rand,  9,  12. 

Gray  vs.  Jones,  143. 

Greelj-  Irr.  Co.  vs.  House,  559,  572. 

Greer  vs.  Heiser,  248. 

Grear  vs.  Tripp,  295. 

Greatrex  vs.  Hayward,  287,  297. 

Gregory  vs.  Nelson,  225,  245. 

Greeley  vs.  Maine  Central  Rail- 
way Co.,  39. 

Green  vs.  Carrotta,  45,  287,  297. 

Green  vs.  Heiser,  254. 

Green  vs.  Prettyman,  260. 

Greencastle  vs.  Hazelett,  39. 

Greenleaf  vs.  Frances,  78. 

Greenleaf  vs.  Kilton,  54. 

Greenslade  vs.  Holliday,  70. 

Green's  Appeal,  263. 

Greggory  vs.  Nelson,  245. 

Grisby  vs.  Clear  Lake  W.  Co.,  256, 
294.  295,  333. 

Grinuell  vs.  Chicago,  etc.,  Rail- 
way Co.,  137,  190. 

H. 

Hadden  vs.  Shutz,  268. 

Hadgdon  vs.  Southern  Pacific  Ry. 

^o-.  357- 
Hadley  vs.  Hadley  Mfg.  Co.,  59. 
Hagan  vs.  Campbell,  54. 
Hagar  vs.  Rec.  Dist.,  94,  132,   135. 
Haight  vs.  Keokuk,  41,  54. 
Haldeman  vs.  Bruckhart,  48. 
Hale  vs.  McLea,  48,  59,  275,  350. 
Hall  vs.  Chaffee,  93. 
Hall  vs.  Russell,  137. 
Hall  vs.  Swift,  70. 
Halsey  vs.  McConnick,  82. 
Ham  vs.  Missouri,  138. 
Hambleton  vs.  Duhain,  139. 
Hamilton  vs.  Donegal,  83. 


Hammond  vs.  Hall,  47,  78. 
Hammond  vs.  Rose,  156,  173,  219, 

228,  556,  573. 
Hammond  vs.  Zehmer,  256,  294. 
Handly  vs.  Anthony,  82. 
Hanford  vs.  St.  Paul  Ry.  Co.,  58. 
Hanibal,  etc.  Ry.  Co.  vs.  Smith, 

137,  138. 
Hanson  vs.  McCue,  45,  48,  49,  298, 

350. 
Hapgood  vs.  Brown,  268. 
Hardin  vs.  Jordan,  38,  54,  87. 
Hargreave  vs.  Diddams,  53. 
Harold  vs.  Jones,  42. 
Harris  vs.  Harrison,  277,  280,  336, 

250. 

Harris  vs.  Shontz,  332. 

Harris  vs.  Thompson,  94. 

Harris  vs.  Merritt,  295. 

Hart  vs.  Hill,  54,  83. 

Hart  vs.  Rogers,  54. 

Hart  vs.  Plum,  264. 

Hart  vs.  Vose,  92. 

Harvey  vs.  Chilton,  167,  182. 

Hartzall  vs.  Sill,  80,  173. 

Haskell  vs.  New  Bedford,  250. 

Haskins  vs.  Haskins,  67, 

Hastings  Ry.  Co.  vs.  United  States 
216. 

Hastings  Ry.   Co.  vs.   Whitehall, 
216. 

Hastings   &   Dakota    Ry.   Co.  vs. 

Whitney,  219. 
Hatch  vs.  D wight,  52,  54,  81. 
Hawenstein  vs.  Lynham,  126. 
Hawksville  vs.  Lander,  54. 
Hay  vs.  Sterrett,  52,  59,  6r,  173. 
Hayden  vs.  Long,  8,  244,  278,  282. 
Hayes  vs.  Waldron,  76,  250,  274. 
Hay's  Executors  vs.  Bowman,  90. 
Hayward  vs.  Mason,  68. 
Haywood  vs.  Kd wards,  61. 
Healy  vs.  Woodruff,  283,  350. 
Heath  vs.  Ross,  219. 
Heath  vs.  Williams,  59,  66,  73,  80, 

81,  193. 


XXIV 


TABLE    OF    CASES    CITED. 


(The  references  are  to  the  sections.) 


Hedrick  vs.  Hughes,  139.  | 

Heinlen  vs.  Fresno  C.  &  Ir.  Co.,   j 

328,  331.  350.  j 

Heineman  vs.  Blake,  266. 
Heilbron   vs.   Fowler's    Switch 

Canal  Co.,  284,  329,  330,  331,   ' 

350. 
Heilbron    vs.   King's   River,    etc. 

Co.,  296. 
Heilbron  vs.  Last  Chance  W.  Co., 

284,  295. 
Heintzen  vs.  Binniger,  256. 
Henderson  vs.  Nichols,  264,   302, 

303- 
Hendrick  vs.  Cook,  54,  75. 
Hendrick  vs.  Hughes,  138. 
Hendricks  vs.  Johnson,  59. 
Hepburn  vs.  Ellzey,  i45- 
Hesperia     Land    &    W.    Co.    vs. 

Rogers,  157,  178,  254. 
Hess  vs.  Winder,  157. 
Hewitt  vs.  Story,  254,  302. 
Hewlins  vs.  Shippan,  91,  93. 
Heydenfeldt  vs.  Daney  G.  M.  Co., 

124. 
Heyneman  vs.  Blake,  223. 
Hicks  vs.  Bel,  no. 
Hickok  vs.  Hine,  54. 
Higgins  vs.  Barker,  154,   173,   175, 

230. 
Hill  vs.    King,  99,   173.   181.    250, 

330- 
Hill  vs.  Leonardman,  108,  228,  229. 
Hill  vs.  National  Bank,  268. 
Hill  vs.  Newman,  59,  105,  156,  173, 

223,  224,  264. 
Hill  vs.  Smith,   106,   154,   164,   173, 

175,  181,  223,  225,  233,  249,  250, 

251.  253- 
Hillman  vs.   Hardwick,    173,    230, 

242,  512. 
Hillman  vs.  Newington,  327. 
Himes  vs.  Johnson,   io5.   148,   156, 

173.  225. 
Hinde  vs.  Vattier,  146. 


Hindman  vs.  Rizor,  235,  236,  238, 

255,  264. 
Hobart  vs.  Ford,  89,  135,  148,  156, 

245- 
Robert  vs.  Wicks,  156,  248. 
Hodges  vs.  Williams,  40,  41,  46. 
Hoffman  vs.  Stone,   163,   173,  246, 

341- 
Hoffman  vs.  Tuolumne  Water  Co., 

244,  324. 
Hogg  vs.  Beerman,  38. 
Hoke  vs.  Purdue,  389. 
Holbert  vs.  Edens,  54. 
Holcraft  vs.  Heel,  52. 
Holden  vs.  Joy,  125,  193. 
Holden  vs.  Lake  Co.,  76. 
Holden  vs.  Robinson  Mfg.  Co.,  54. 
Holford  vs.  Bailey,  38. 
Holman  vs.  Pleasant  Grove,  446. 
Holsman   vs.    Boiling    Springs 
Bleaching  Co.,  62,  250,  321,  329 

Holton  vs.  Milwaukee,  64. 

Holme  vs.  Shreve,  75. 

Holmes  vs.  Jennison,  125,  193. 

Holyoke    Water    Power    Co.;    vs. 
Lyman,  52,  84. 

Home  vs.  Richards,  54.. 

Honsee  vs.  Hammond,  250. 

Hoofnagle  vs.  Anderson,  136. 

Hooker  vs.  Cummings,  54,  83. 

Hopkins  vs.  Butte  &  M.  Commer- 
cial Co.,  324. 

Hopkins  Academy  vs.  Dickinson, 
54,  82. 

Houghton  vs.  Chicago  Ry.  Co.,  39, 

54- 
Houck  vs.  Yates,  54- 
Howard  vs    Ingersol,  39,  43>  5i- 
Howell  vs.  King,  91. 
Howard  vs.  Mason,  72. 
Howell  vs.  McCoy,  61,  62,  250. 
Howell  vs.  Slauson,  139. 
Howard  vs.  Wright,  80. 
Howe  Scale  Co.  vs.  Perry,  56. 
Hoyt  vs.  Hudson,  39,  45- 


TABLE    OF    CASES    CITED. 


XXV 


(The  references  are  to  the  sections.) 


Hubbard  vs.  Bell,  54. 

Huddleson    vs.    West   Belleview, 

28S. 
Hudson  vs.  Doyle,  333. 
Huff  vs.  Nickerson,  319. 
Huff  vs.  Doyle,  131. 
Hughes  vs.    Providence    Ry.  Co., 

154- 
Hughes  vs.  United  States,  214. 
Hulsman  vs.  Todd,  323,  326,  327. 
Hunt  vs.  Plum,  224. 
Hurd  vs.  Curtis,  297. 
Hussy  vs.  Smith,  140. 
Hustado  vs.  California,  99. 
Huston  vs.  B3-bee,  293,  295,  296. 
Hutchinson  vs.  Colman,  51. 
Hutton  vs.  Frisbee,  212,  219. 

I. 

Illinois  vs.    Illinois    Central   Ry. 

Co.,  54. 
Imperial,  The,  41. 
Inge  vs.  Murphy,  98. 
Ingraham  vs.  Chicago  Ry.  Co.,  64. 
Ingraham  vs.  Hutchinson,  59,  73, 

192. 
Ingraham  vs.  Threadgill,  54. 
Ingraham  vs.  Wilkinson,  54,  82. 
Ingram  vs.  Police  Jury,  40,  42. 
Irvine  vs.  Irvine,  208. 
Irvine  vs.    Marshall,  131,  134,  146, 

147,  193,  194- 
Irwin  vs.  Brown,  54. 
Irwin  vs.  Philips,  99,  106,  no,  173, 

219. 
Irwine   vs.    Strait,    161,    168,    169, 

184,  255. 
Ison  vs.  Nelson,  258. 
Ivanhoe  vs.  Keystone,  139. 
Iviniey  vs.  Stacker,  287,  297. 

J. 

Jackman  vs.  .\rlington  Mills,  61. 
Jackson  vs.  Allen,  565. 
Jackson  vs.  Bard,  219. 
Jackson  vs.  Bull,  219. 


Jackson  vs.  Clark,  143. 

Jackson  vs.  Chew,  125. 

Jackson  vs.  Halsted,54,  90,  133. 

Jackson  vs.  Lewis,  54. 

Jacobs  vs.  Lorenz,  194,  325. 

Jackson  vs.  Trulinger,  268. 

Jakeway  vs.  Barrett,  38,  87. 

James  vs.  Adams,  89. 

James  vs.  Goodenough,   173. 

James  vs.  Williams,  173. 

Jamison  vs.  Pettibone,  54. 

Jattunn  vs.  O'Brien,  254. 

Jefferies  vs.  East  Omaha  Land  Co., 
82. 

Jennings,  ex  parte,  52,  54,  193. 

Jennison  vs.  Kirk,  89,  98,  102,  113, 
114,  115,  141,  150,  173,  185,  187, 
197,  198,  204,  207, 226,  235,  240, 

332,  453- 
Jerret  vs.  Mahan,   326,  332. 
Johns  vs.  Stevens,  56,  294. 
Johnson  vs.  Ballou,  219. 
Johnson  vs.  Hide,  297. 
Johnson  vs.  Jones,  58. 
Johnson  vs.  Jordan,  59. 
Johnson  vs.  Knott,  41,  55. 
Johnson  vs.  Towley,  142,  143. 
Johnson   vs.    M'Intosh,    127,    133, 

134- 
Jones  vs.  Adams,  76,  loS,  148,  156, 

173,  198,  201,  205,  227,  235,  274, 

412. 
Jones  vs.  Clark,  305,  306. 
Jones  vs.  Janney,  54. 
Jones  vs.  Jackson,  159,  176. 
Jones  vs.  Johnson,  58,  82. 
Jones  vs.  Lee,  54. 
Jones  vs.  Parsons,  301,  302. 
Jones  vs.  Pettibone,  91. 
Jones  vs.  Soulard,  52,  55,  82. 
Jones  vs.  Van  Zant,  127. 
Jones  vs.  Waterlot  Co.,  54. 
Jones  vs.  Wabash  Ry.  Co.,  45. 
Jonesville  vs.  Carpenter,  54. 
Jourdan  vs.  Barrett,   134,   147,   194- 
Judkins  vs.  I^lliott,  207. 


XXVI 


TABLE    OF    CASES    CITED. 


(The  references  are  to  the  sections.) 


Junkens  vs.  Bergen,  154,  173,  175, 

230,  243,  245,  343. 
Justices  vs.  Crosby,  334. 

K. 

Kahn   vs.   Central   Smelting   Co., 

303- 
Kansas  City  Ry.  Co.,  vs.  Attorney 

General,  137. 
Kansas  Pacific  Ry.  Co.  vs.  Dun- 

meyer,  137,  144,  209. 
Kansas  Pacific  Ry.  Co.  vs.  Atchi- 
son, etc.  Ry.  Co.,  141,  217. 
Kaler  vs.  Campbell,  173,  207,  282, 

50S. 
Kates  vs.  Waddington,  54. 
Kayden  vs.  Long,  173. 
Keeney  vs.  Carillo,  43,   160,    161, 

163,  139,  173,  184,  255,  322. 
Keene}'  Mfg.  Co.  vs.  Union  Mfg. 

Co.,  59,  80,  173. 
Kelly  vs.  Dunning,  45. 
Kelly  vs.  Lett,  61. 
Kelly  vs.  Natonia  Water  Co.,  159, 

160,  161,  162,  167,  168,  173,  175, 

184,  210,  281. 
Kelly  vs.  Taylor,  260. 
Kendall  vs.  United  States,  145. 
Kennedy  vs.  Scovil,  91. 
Kent  vs.  Waite,  92. 
Kentuckv  Lumber  Co.  vs.  Green, 

54- 
Kepp  vs.  Wiggett,  263. 
Key  vs.  Jennings,  143. 
Keyser  vs.  Covell,  92. 
Kidd  vs.  Laird,   59,   106,    154,  162, 

173,    223,    225,    231,    233,    246, 

247,    249,    264,    265,    275,    2S1, 

343  • 
Kimball    vs.    Gearhart,    150,     157, 

158,    159,    160,    168,     184,    225, 

255>    265,    306,    346. 
Kimball  vs.  Kenosha,  54. 
Kimball  vs.  Scarff,  54. 
Kimmler  vs.  St.  Louis,  288. 
Kinney  vs.  Farnsworth,  260. 


King  vs.  Edwards,    159,    160,   16  r, 

168,  184. 
King  vs.  King,  52,  54. 
King  vs.  Lord  Yardborough,  82. 
King  vs.  Montigne,  53. 
King  vs.  Smith,  38. 
King  vs.  Tiffany,  56,  59,  193. 
Kingman  vs.  Sparrow,  38,  54. 
Kirk   vs.   Bartholemew,    232,   235, 

237,  238,  512. 
Kirman  vs.  Hunnewill,  253,  255. 
Kissell  vs.  St.  Louis  Pub.  Schools,  , 

139- 
Knight  vs.  Nelder,  54. 
Kuowles  vs.  Clear  Creek  P.  R.  & 

M.  Co.,  572 
Knox  vs.  Chaloner,  54. 
Kraut  vs.  Crawford,  54,  55. 
Cucheman  vs.  C.  C.  &  B.  Ry.  Co., 

64. 

L. 

Ladd  vs.  Osborn,  87. 

La  Joy  vs.  Primm,  288. 

Lake  Pleasanton    Water    Co.    vs. 

Contra  Costa,  357. 
Lake  vs.  Tolles,  332,  397. 
Lakeside  Ditch  Co.  vs.  Crane,  223, 

256,  295. 
Lamb  vs.  Davenport,  141,  209,  218. 
Lamb  vs.  Ricketts,  54. 
Lamm  vs.  Chicago  Ry.  Co.,  140. 
Lamme  vs.  Bush,  55,  140. 
Lammers  vs.  Nissen,  58. 
Landsdale  vs.  Daniels,  89,  184,  213, 

215- 

Lane  vs.  Miller,  93. 

Langdean  vs.  Howes,  129. 

La  Plaisance  Bay  Harbor  Co.  vs. 
Monroe,  54. 

Larimer  County  Res.  Co.  vs.  Peo- 
ple, 108,  175,  207,  556,  558. 

La  Roche  vs.  Jones,  126. 

Last  Chance  M.  Co.  vs.  Bunker 
Hill  S.  M.  Co.,  230,  234,  255, 
256,  293,  295,  296. 


TABLE    OK    CASES    OITHD. 


xxvu 


(The  references  are  to  the  sections. 


Lattimer  vs.  Potert,  126. 

Lawrence  vs.  Brown,  288. 

Lawton  vs.  Cotner,  40. 

Lawton  vs.  Ward,  91. 

Learned  vs.  Tan^enian,  69,  73,  273, 

275.  328,  350. 
Leavenworth   vs.    United    vStates, 

124,  133.  137- 
Le  Barron  vs.  Le  Barron,  201. 
Lechler  vs.  Chapin,  140. 
Ledu  vs.  Jim    Yet   Wa,    257,    294, 

345- 
Ledj-ard  vs.  Ten  Kyck,  46.  87,  238. 
Lee  Doon  vs.  Tesh,  155. 
Leggett  vs.  Kerton,  268. 
Lehi  Irr.  Co.  vs.  Moyle,   150,  173, 

207,  231,  262,  451. 
Leigh  vs.  Independent  Ditch  Co., 

150.  I73vi9i- 

Lewen  vs.  Smith,  54. 

Lewis  vs.  Keeling,  41,  54. 

Lewis  vs.  Stein,  62,  250. 

Lick  vs.  Madden,  223. 

Lind  vs.  New  Bedford,  75. 

Lindsey  vs.  Hawes,  136,  208, 

Lincoln  vs.  Davis,  54. 

Lincoln  vs.  Wilder,  54. 

Lindsley  vs.  Coates,  201. 

Lindsay  Irrigation  Co.  vs.  Wil- 
liams, et  al,  357. 

Lindsey  vs.  Miller,  136. 

Lingwood  vs.  Stonemarkct  Co., 
250. 

Linthicum  vs.  Coan,  82. 

Liskeard  Union  vs.Liskeanl  Water 
Co.,  94. 

Litchfield  vs.  Richards,  138. 

Litchfield  vs.  Webster  Co.,  137. 

Little  vSchuylkill  Navigation  Co. 
vs.  Richards,  327. 

Livett  vs.  Wilson,  92. 

Livingston  vs.  Ten  Broeck,  91. 

Lobdell  vs.  Hall,   135,  155,  264. 

Lobdel  vs.  Simpson,  106,  154,  173, 
175,  179.  180,  225,  230,  253. 

Lockhart  vs.  Ogden,  225. 


Lodiga  vs.  Roland,    136. 

Lombard  vs.  Sterns,  94. 

Longbars  vs.  Blake,  145. 

Lord  vs.  Comni.  of  Sidney,  58. 

Lord  Fitzwalter's  Case,  89. 

Lorenz  vs.  Jacobs,  94,  301,  337. 

Lorman  vs.  Benson,  54,  64,  98,  201. 

Los  Angeles  vs.  Baldwin,  188,247, 
256,  292,  293. 

Loud  Gold  Mining  Co.  vs.  Blake, 
28S. 

Louisville  Bridge  Co.  vs.  Louis- 
ville, 54. 

Louisville  vs.  United  States  Bank, 

54- 
Lovington  vs.  Countv  of  St.  Clair, 

83. 
Love  vs.  Sharitzer,  260. 
Lowe   vs.   Shaffer,    173,    179,   273, 

264,  283. 
Lowe  vs.  Hutchins,  219 
Lowe  vs.  Lambeth  Water  Works 

Co.,  66. 
Lower  King's  R.  D.  Co.  vs.  Lower 

King's  R.  F.  Co.,  173,  224,  247, 

249.  253.  259,  264. 
Lowden  vs.  Prey,  263. 
Lowell  vs.  Boston,  94. 
Lucas  vs.  Beebe,  263. 
Luckhart  vs.  Ogden,  160. 
Lunt  vs.  Holland,  52,  89. 
Luther  vs.  Winnisiuimet  Co.,  39, 

45- 
Luther  vs.  Borden,    126. 
Luttrel's  Case,  91. 
Lux    vs.    Ilaggin,    15.   41,    45,  59, 

65.   73,   75.    81,    108,    109,  III, 

116,  132,  194,201,  203,204,207, 

208,  214,  218,  223,  260,  262,  273, 

274,  275,  276,  280,  2S4,  288,  290, 

292,  295,  329-  330,  350,  357.  390- 
Lynch  vs.  Debernal,  219. 
Lyon  vs.  Fishmongers  Co.,  56,  59, 

64,  88. 
Lyon  vs.  Mcl.oughlin,  321,  329. 


XXVlll 


TABLE    OF    CASES    CITED. 


(The  references  are  to  the  sections.) 


Lyttle  Creek   Water   Co.   vs.  Per- 
due,   301,    302,  303,  307,    326, 

345- 
Lytte    vs.  Arkansas,  124. 

M. 

Mackenzie  vs.  Baker,  86. 
Mackey  vs.  Coxe,  134. 
M'Arthur  vs.  Browder,  143. 
McCannvs.  Oregon  Ry.   Co.,  508. 
McCalmont  vs.  Whittiker,  59. 
McCarty  vs.  Boise  City  Canal  Co., 

315- 
McCauley   vs.   McKeig,    163,   244, 

253.  255- 
McClain  vs.  People,  557. 
McClellan  vs.  Hurdle,  298,  299. 
McClintock  vs.  Bryden,  201. 
McComb  vs.  Gilkey,  146,  288. 
McConnell   vs.   Denver,  301,  303, 

305.  306. 
McCoon  vs.  Ankeny,  264. 
McCord  vs.   Oakland   Q.    M.  Co., 

306. 
McCormick  vs.  Horam,  61. 
McCracken  vs.  San  Francisco,  260. 
McCreary   vs.   Beaudry,    266,  317, 

333- 

McCreary  vs.  Haskell,  139. 

McCulloch  vs.  State  of  Mary- 
land, 134. 

McCullougli    vs.   Wainwright,  39. 

McCullough  vs.  Wall,  54. 

McDonald  vs.  Askew,  150,  154, 
225,  247,  248,  249,  2S1. 

McDonald  vs.  Bear  River  W.  &  M. 
Co.,  150,  154,  164,  173,  223, 
233,  264,  267,  2S1. 

McFd^lin  vs.  Essex  Co.,  54. 

McFadden  vs.  Board,  235,  311. 

McGarrahan  vs.   Mining  Co.,  208. 

McGenness  vs.  Adriatic  Mills,  250. 

McGhee   Irr.   Ditch  Co.   vs. 
Hudson,  528. 

McHardy  vs.  Ellice,  39. 

McElry  vs.  Gable,  66. 


McKeen  vs.  Delaware  Canal  Co., 
40,  54,  61. 

McKinley  vs.  Wheeler,  155. 

McKinney  vs.  Saviego,  129. 

McKinney    vs.    Smith,   106,     150, 
151,  154,  157,  164,  173, 175,  177, 
I  179,  180,  231,  281,  253,  254,  259, 

345- 

McKensie  vs.  Ballard,  557. 

McMannis  vs.  Cartnichael,  40,  41, 
54,  64. 

McMenomy  vs.  Band,  333. 

McMicken  vs.  United   States,  127. 

McNoble  vs.  Justinio,  295. 

McPhailvs.  Fornev,  265,  269,  332, 
488. 

McUmber  vs.  Godfrey,  45. 

Maddoxvs.  Goddard,  268. 

Maeris  vs.  Bicknell,  106,  150,  151, 
154,  157,  I59>  160,  161, 164,  167, 
168,  173,  184,  210,  233,  254. 

Magee  vs.  Hallett,  54. 

Magor  vs.  Chadwick,  287. 

Magnolia,  The,  vs.  Marshall,  54. 

Mahan  vs.  Brown,  79. 

Maine  Boys  T.  Co.  vs.  Boston  Tun. 
Co.,  260. 

Malad  Valley  Ir.  Co.  vs.  Campbell, 
173.  512.' 

Malvaney  vs.  Kennedy,  334. 

Marbury  vs.  Madison,  125. 

Marbury  vs.  Nitchin,  66. 

Mariner  vs.  Schulte,  87. 

Marry  vs.  Sermon,  88. 

Marshall  vs.  UUeswater  Naviga- 
tion Co.,  38,  86,  88. 

Martin  vs.  Beverly,  54. 

Martin  vs.  Biglow,  173. 

Martin  vs.  Bliss,  42. 

Martin  vs.  Mance,  54. 

Martin  vs.  Marks,  137. 

Martin  vs.  Waddell,  51,  54,  127. 

Martin  vs.  Zellerbach,  160. 

Mason  vs.  Cotton,  108. 
Mason  vs.  Hill,  16,  59,  62,  70,  76, 
80,  92,  193,  250. 


TABLE   OF    CASES    CITED. 


XXIX 


(The  references  are  to  the  sections.) 


jVIasou  vs.  IMansneld,  41. 
Mason  vs.  Neil,  56. 
Masonic  Temple  vs.  Harris,  293. 
Mathews  vs.  Ferrea,  89,  194. 
Mathews  vs.  Kinsel,  244. 
Maxwell  vs.  Bay  City  Co.,  54,  93. 
Maxwell  Land  Grant,  131,  134. 
Maxwell  vs.  Moore;  143. 
Maye  vs.  Yappen,  260. 
Mayo  vs.  Courtright,  288. 
Mayor  vs.  Chadwick,  250. 
Mayor  of  Lynn  vs.  Turner,  40. 
Mead  vs.  Haines,  52,  54. 
Mead  vs.  United  States,  128. 
Meggerle  vs.  .\she,   156,   161,  169, 

184,  213,  215,  219,  255. 
Melvin  vs.  Whiting,  92. 
Memphis  vs.  Overton,  54. 
Menard  vs.  Massey,  130. 
Menasha   Wooden    Ware   Co.   vs. 

Lawson,  54. 
Menzies  vs.  Bredaloane,  39. 
Merced  Mining  Co.  vs.  Freemont, 

99. 
Merchy  vs.  Gates,  287. 
Merrifield  vs.  Lombard,  62,  67,  250. 
Merrifield  vs.  Worcester,    59,  67, 

250. 
Merritt  vs.  Brinkerhoff,  6t,  76,  80. 
Merritt  vs.  Judd,  224,  264. 
Merritt  vs.  Parker.  56,  59. 
Messinger  vs.  Mason,  127. 
Meyer,  et  al  vs.  Tacoma  Light  and 

Water  Co.,  299. 
Meyer,  etc.  vs.  Spring  Garden,  69. 
Meyers  vs.  St.  Louis,  64. 
Middlesex  Co.  vs.  Lowell,  294. 
Middleton  vs.  Flat  River  Booming 

Co.,  67. 
Middleton  vs.  Prichard,  52,  54,89. 
Miles  vs.  Caldwell,  146. 
Miles  vs.  Rose,  40. 
Mill  River  Mfg.  Co.  vs.  Smith,  54. 
Miller,  P'x  parte,  91. 
Miller  vs.  Auburn,  etc.  Ry.  Co.,  93. 


Miller  vs.  Hepborn,  54. 

Miller  vs.    Highland   Ditch    Co., 

323.  327- 

Miller  vs.  Lambach,  61, 

Miller  vs.  Little,  53. 

Miller  vs.  Mayor  of  New  York,  40. 

Miller  vs.  Miller,  73,  75,  76,  2S0. 

Miller  vs.  Miller,  26S. 

Miller  vs.  Swan,  137. 

Miller  vs.  Taylor,  565. 

Mills  vs.  Hall,  42. 

Milwaukee  Gas  Light  Co.  vs.  The 
Gamecock,  41. 

Mining  Debris  Case,  The  (See 
Woodruff  vs.  North  Bloom- 
field),  294, 295,  333. 

Miner  vs.  Gilmour,  56,  58,  59,  65, 
66,  67,  76,  287,  297. 

Minnesota  vs.  Bachelder,  136. 

Minter  vs.  Crommelin,  136. 

Minto  vs.  Delaney,  41,  55. 

Minturn  vs.  Lisle,  42. 

Mississippi   Mills  Co.   vs.   vSmith, 

293- 
Mississippi  &  Missouri  Ry.  Co.  vs. 

Ward,  333. 
Missouri  Pac.  Ry.  Co.  vs.  Kansas 

Pac.  Ry.  Co.,  137. 
Missouri,  etc.  Ry.  Co.  vs.  Noyes, 

189. 
Missouri,  etc.  Ry.  Co.  vs.  United 

States,   133. 
Mitchell  vs.  Barry,  75,  250. 
Mitchell  vs.  Parks,  294. 
Mitchell  vs.  United  States,  133. 
Mobile  vs.  Eslava,  54. 
Moffat  vs.  Brewer,  54. 
Mokelomne  vs.  Woodbury,  249. 
Monongahela  Bridge  Co- vs.  Kirk, 

40,  54- 
Montello,  The,  40. 
Monroe  vs.  Stickney,  75. 
Montgomery  vs.  Harrington,  303. 
Montgomery  vs.  Lock,  350. 
Montault  vs.  T'nited  States,  128. 


XXX 


TABLE    OF    OASES    CITED. 


(The  references  are  to  the  sections.) 


Moore  vs.  Clear  Lake  W.  Co.,  io8, 

280,  329,  330,  332. 
Moore  vs.  Great  vSoulhern  R}-.  Co. 

64. 
Moore  vs.  Robbins,  142,  143. 
Moore  vs.  San  borne,  54. 
Moore  vs.  Veazie,  54. 
Mooers  vs.  White,  155. 
Moore  vs.  Willimette  Trans.  Co., 

41,  55,  508. 
Morgan  vs.  King,  41,  54,  201. 
Morgan  vs.  Redding,  54. 
Moriarily  vs.  Boone  Co.,  219. 
Morrill  vs.  Hurley,  39. 
Morrill  vs.  St.   Anthony  F'allsCo., 

64. 
Morris  vs.  Moore,  288. 
Morrison  vs.  Bucksport  Ry.   Co., 

39- 
Morrison  vs.  Keene,  52,  54. 
Morrison  vs.  Thurnian,  54. 
Morrow  vs.  Whitney,  208. 
Morse  vs.  Copeland,  93. 
Mosier  vs.  Caldwell,  49,  29S. 
Morton  vs.  Nebraska,  127. 
Mottvs.  Ewing,  329. 
Mott  vs.  Mott,  54,  330. 
Moulton  vs.  Libby,  41. 
Moulton  vs.   Newberyport  Water 

Co.,  63,  67. 
Mower  vs.  Fletcher,  218. 
Mudd  Creek  Irr.   Co.   vs.  Vivian. 

73.  273.  312. 
Miihlenburg    vs.    Druckentniller, 

263. 
Muler  vs.  Land,  529. 
Mulry  vs.  Norton,  82. 
Munroe  vs.  Ivie,  135,  150,  173,313. 
Munson  vs.  Huiigerford,  42. 
Murchie  vs.  Gates,  297. 
Murdock  vs.  Stickney,  40. 
Murphy  vs.  Ryan,  53. 
Murrell  vs.  Mackman,  93. 
Musser  vs.  Hershley,  41,  54,  64. 
Myers  vs.  Craft,  141. 

N. 

Natoma  iVater  Co.  vs.  Bugby,  139. 
Natoma  Water  &  Mining  Co.  vs. 

Hancock  etal.,  331. 
Natoma    Water    Co.    vs.    McCoy, 

225,  249,  326. 
Nellis  vs.  Munson,  91. 
Nevada  Count}',  etc.,  Co.  vs.  Kidd, 

106,  151,  154, i6[,  167,  179   180, 

182,184,238,  247,  248,  253,  281. 


Nevada  Water  Co.  vs.  Powell, 
154.  173,  I75>  176,  225,  227,  230, 
231,  233,  248,  345. 

New  Albany  Ry.  Co.  vs.  Peterson, 

39- 

Newark  Aqueduct  Board  vs.  Pas- 
saic, 40. 

Newhall  vs.  Hill,  319. 

Newhall  vs.  Ireson,  73,  75. 

Newhall  vs.  Sanger,  124,  130,  131, 
136. 

New  Ispwich  Factory  vs.  Batchel- 
der,  267. 

New  Orleans  vs.  LTnited  States,  82, 
312. 

New  Orleans  vs.  De  Armas,  128. 

Newton  vs.  Eddy,  54. 

New  York  Printing  Co.  vs.  Fitch, 

334- 
New  York  Rubber  Co. vs.  Rothery, 

288. 
Niagara  Falls  Ry.  Co.,  In  re,  94. 
Niehaus  vs.  Shepherd,  54. 
Nichols  vs.  Mcintosh  et  al.,  231, 

253,  301- 
Nichols  vs.  Suncock  Mfg.  Co.,  54. 
Nickerson  vs.  Crawford,  54. 
Nield  vs.  London  Ry.  Co.  287. 
Noble  vs.  Cope,  263. 
Noble  vs.  Cunningham,  54. 
Noonan  vs.  Albany,  61. 
Norfolk  City  vs.  Cook,  54. 
Norris  vs.  Harris,  2or. 
Norris  vs.  Hill,  54. 
North    Noonday    Mining   Co.    vs. 

Oriental  Mining  Co.,  155,  157. 
Northam  vs.  Hurley,  91. 
Northern  Pacific  Ry.    Co.   vs.  St. 

Paul,  etc.,  Ry.  Co.,  144. 
Norway  Plains  Co.  vs.  Bradley,  54, 

76,  294. 
Nugent  vs   Riley,  319. 
Nuttall  vs.  Bracewell,  59,  76,  287, 

297. 
Nye  vs.  Andrews,  87. 

o. 

O'Connor  vs.  North  Truckee  Ditch 

Co.,  302,  315.  319. 
Ogburn  vs.  Connor,  194. 
O'Keefe  vs.  Cunningham,  176. 
ulson  vs.  Merrill,  54,  87. 
Olney  vs.  Fenney,  54. 
O'Niel  vs.  Blodgett,  92. 
Oneto  vs.  Restano,  256,  257. 


TABLE    OF    CASES    CITED. 


XXXI 


(The  refereuces  are  to  the  sections.) 


Ophir  Mining  Co.  vs.  Carpenter, 
io6, 135, 150,  160,  161, 168,  169, 
i73>  175.  180.  184,  225,  230,  255, 
270. 

O'Riley  vs.  McChesney,  250. 

Oregon  Iron  Co.  vs.  Trullenger, 
508. 

Ortman  vs.  Dickson,  106,  150,  173, 
175.  179.  180,  219,  225,  230, 233, 

247.  253- 
Orvis  vs.  Powell,  146. 
Osborne  vs.  Endicott,  288. 
Osgood  vs.  Eldorado   W.  Co.,  42, 

98,  III,  116,  148,   156,  157,  159, 

160,173,184,  186,210,  211,  213, 

219,  246,  247,  255,   295. 
Ostermanvs.  Baldwin,  155. 
Owen  vs.  Bartholomew,  288. 
Owen  vs.  Field,  59,  93. 
Owens  vs.  Jackson,  138. 

P. 

Pacific  Yacht   Club   vs.    vSansalito 

Bay  W.  Co.,  336. 
Packer  vs.  Bird,  41,  55,  87. 
Page  vs.  Esty,  268. 
Paige  vs.  Rocky   Ford    C.   &  Irr. 

Co.,  246. 
Paine  vs.  Woods,  38,  73,  87,  88. 
Palmer  vs.  Waddell,  39,  45. 
Palmer  vs.  Mulligan,  54,   173,   250. 
Palmdale  Irr.  District  vs.  Rathke, 

392- 
Parke  vs.   Kilham,    160,  301,  326, 

330.  332,  333- 
Parker  vs.  Baker,  2S8. 
Parker  vs.  Griswold,   63,   75,  280, 

321. 
Parker  vs.  Hotchkiss,  80,  173,  193. 
Parker    vs.   West   Coast   Packing 

Co.,  41,  55- 
Parks   Canal  &   Mining    Co.    vs. 

Hoyt.  106,   162,   168,   223,   246, 

247,  249,  260,  326. 
Parks  vs.  Newburyport,  39,  45. 
Partridge  vs.  McKinnoy,  256. 


Passadena  I<and  Co.  vs.  Painter, 
269. 

Passenger  Cases,  The,  42. 

Patton  vs.  Marden,  67. 

Patterson  et  al.  vs.  Brown  &  Cam- 
pion, 307. 

Patterson  vs.  Jenks,  136. 

Patterson  vs.  Winn,  125. 

Patteshall  vs.  Turford,  109. 

Pefortvs.  Duncan,  82. 

Pearsall  vs.  Post,  42. 

Peasley  vs.  Tower,  91. 

Pejepscot  Proprietors  vs.  Cush- 
mau,  54. 

Pengra  vs.  Munz,  138. 

Pengra  vs.  Wheeler,  326. 

Pennsylvania  vs.  Wheeling  Bridge 
Co.,  127.     ' 

Pennsylvania  Ry.  Co.  vs.  Miller, 
60,  67. 

Penny  vs.  Little,  201. 

People  vs.   Canal   Appraisers,  32, 

40,  54,  89,  loi. 
People  vs.  Gerke,  125. 
People  vs.  Gutchess,  42,  54. 
People  vs.  Gold  Run  D.  &  M.  Co., 

41,  350. 
People  vs.  Jones,  87. 
People  vs   Larue,  389. 
People  vs.  La  Platte,  83. 
People  vs.  Rogers,  250. 

People  vs.  vSelma  Irr.  District,  396. 
People  vs.  Reclamation    District, 

389- 
People  vs.  Sherer,   214,  219. 
People  vs.  Seymour,  54. 
People  vs.  vSt.  Louis,  42,  54. 
People  vs.  Piatt,  54,  83. 
People  vs.  vStevens,  333. 
People  vs.  Thompson,  89. 
People  vs.  Williams,  3S9. 
Perkins  vs.  Dow,  73. 
Peregoy  vs.  McKissick,  164,  273. 
Peregoy  vs.  Sellick,  73,  336. 
Pere     Marquette    Boom    Co.     vs. 

Adams,  54. 


XXXll 


TABLE    OF    CASES    CITED. 


(The  references  are  to  the  sectious.) 


Perkins  vs.  Dow,  68,  7v 

Perry  vs.  Pratt,  82. 

Perry  vs.  Street,  139. 

Perrj'  vs.  Thornton,  86. 

Perry  vs.  Worcester,  314. 

Peter  vs.  Caswell,  387,  397. 

Peters  vs.  New  Orleans  Ry.  Co., 
54- 

Peterson  vs.  McCullough,  294. 

Pettee  vs.  Hawes,  268. 

Pliilbrickvs.  Ewing,  267. 

Philadelphia   Ry.    Co.,  In   re,  64. 

Philadelphia  vs.  Scott,  64. 

Phillips  vs.  Payne,  126,  145. 

Phoenix  Water  Co.  vs.  Fletcher, 
106,  173,  181, 225,  249,  250, 251, 
332,  326. 

Phillips  vs.  Moore,  155. 

Pierpont  vs.  Loveless,  54 

Pillsbury  vs.  Moore,  56,  66.. 

Pilot  Rock  Creek  Co.  vs.  Chap- 
man, 249. 

Pinney  vs.  Luce,  67. 

Pitsburg  vs.  Scott,  64. 

Pitts  vs.  Lancaster  Mills,  76. 

Pixley  vs.  Clark,  78. 

Platte  &  Denver  Ditch  Co.  vs. 
Anderson,  572. 

Piatt  vs.  Johnson,  81,   173. 

Platte  Water  Co.  vs.  Northern 
Colo.  Irr.  Co.,    163,    253,    556, 

563. 
Plumleigh  vs.  Dawson,  60,  65. 
Polard  vs.  Hagen,  51,  126,  127. 
Polk  vs.  Wendall,  136. 
Polk  vs.  Wendell,  312. 
Pollard's  Lessees  vs.   Hagan,  126. 
Pollenfen  vs.  Crispin,  38,  86. 
Polock  vs.  Pioche,  314,  315. 
Poore  vs.  McClure,  54. 
Portage  City,  134,  188,  292,  350. 
Porter  vs.  Allen,  40. 
Pope  vs.  Kinman,  59,  275. 
Posachane  Water  Co.  vs.  Standart, 

345- 


Posey  vs.  Jones,  82. 

Post  vs.  Munn,,  41. 

Potter  vs.  Froment,  250. 

Powel  vs.  Butler,  297. 

Pratt  vs.  Lamson,  56,  255. 

Pratt  vs.  Young,  140. 

Prentice  vs.  Geiger,  67,  294. 

Prescott  vs.  White,  243,  268. 

Prescott  vs.  Williams,  243. 

Price  vs.  Scotcher,  53. 

Proctor  vs.  Jennings,  154,  173,  179, 

180,  230. 
Proprietor  vs.  Nashua,  314. 
Providence  Steam  Engine  Co.  vs. 

Providence  Steamship  Co. ,64. 
Pugh  vs.  Wheeler,  59,  69,  80,  81, 

173.  193.  201. 
Pursell  vs.  Stover,  93. 
Pj-le  vs.  Richards,  45,  108. 

Q. 

Queen  vs.  Derbyshire,  39. 
Question  by  Governor,  In  re,  567. 
.Quigley  vs.  Birdseye,  155,  235,  253. 
Quinn  vs.  Chapman,  131,  242. 
Quirk  vs.  Falk,  267. 

R. 

Radcliff  vs.  Brooklyn,  78. 
Railroad  Co.  vs.  Djxhe,  108. 
Railroad  Co.  vs.  McShane,  124. 
Railroad  Co.  vs.  Miller,  108. 
Railroad  vs.  Schurmeier,  54,  55. 
Railroad  vs.  Stockton,  357. 
Railroad  Co.  vs.  United  States,  187. 
Ramelli  vs.  Irish,  248. 
Ramsey  vs.  Chandler,  150,  176. 
Randall  vs.  Silverthorn,  73. 
Rankin  vs.  Carless,  334. 
Raritan     Water     Power     Co.    vs. 

Veghte,  93. 
Rawstrom  vs.  Taj-lor,  39,  79. 
Raymond  vs.  Winsette,  331. 
Redding  vs.  Althouse,  287,  297. 
Rector  vs.  Gibbon,  138. 


TABLE    OF    OASES    CITED. 


XXXlll 


(The  references  are  to  the  sections.) 


Rector  vs.  United  States,  133,  141, 

209. 
Red  River,  etc.  R)'.  Co.  vs.  Stone, 

215- 

Red  River,   etc.    Co.    vs.    Wri.ijht, 

108. 
Reddall  vs.  Bryant,  94. 
Read  vs.  Spicer,  223,  224,  264,  301 . 
Regina  vs.  Rynd,  64. 
Regina  vs.  Keyn,  51. 
Reichert  vs.  Felps,  134,  147. 
Reno  S.  M.  Co.  vs.  Stevenson,  98, 

198,  201,  205,  223,  227,  412. 
Renwick  vs.  D.  &  N.  W.  Ry.  Co., 

54- 
Rerick  vs.  Kern,  93. 
Reservoir  Co.  vs.  Southworth,  316. 
Rex  vs.  Bristol  Dock  Co.,  89. 
Rex  vs.  Burdett,  109. 
Rex  vs.  Clark,  89. 
Rex  vs.  Montague,  40. 
Rex  vs.  Oxfordshire,  39. 
Rex  vs.  Russell,  64.  ' 

Rex  vs.  Trafford,  39,  56. 
Rex  vs.  Trustee,  224. 
Rex  vs.  Westliam,  89. 
Rex  vs.  Wharton,  52. 
Rex  vs.  Whitney,  59. 
Rex  vs.  Yardborough,  82. 
Reynolds  vs.  Commonwealth,   46. 
Reynolds   vs.    Hosmer,    225,    249, 

259,  267. 
Reynolds   vs.   Mc.A.rthur,    39,    56, 

143- 
Rhodes  vs.  Otis,  54,  93. 
Rhodes  vs.  Whitehead,  56,  59,  67, 

68,  527,  529. 
Ricard  vs.  Williams,  92,  256,  294. 
Rice  vs.  Kvansville,  39. 
Rice  vs.  Minn.  etc.  Ry.  Co.,  137. 
Rice  vs.  Ruddiman,  54,  64. 
Rich  vs.  Atwater,  288. 
Richmond  Mfg.  Co.   vs.   Atlantic 

Delaine  Co.,  62,  250. 
Richards  vs.  Home,  54. 


Richards  vs.  Sears,  260. 
Richardson  vs.  Biglow,  268. 
Richardson  vs.  Kier,  163,  244.  246, 

314,  324,  325- 
Rioker  vs.  Kelly,  93. 
Ridge  vs.  Midland  Ry.  Co.,  250. 
Ridgley  vs.  Johnson,  54. 
Ridgeway  vs.  Ludlow,  87. 
Right  vs.  Eldred,  46. 
Right  vs.  Howard,  108. 
Ripka  vs.  Sergeant,  75. 
Risien  vs.  Brown,  91. 
Riter  vs.  Patch,  334. 
Rivers  vs.  Burbank,  148,  156. 
Riverside  Water  Co.  vs.  Gage,  162, 

332,  337- 
Ricks  vs.  Johnson,  54. 
Roath  vs.  Driscoll,  48,  298. 
Roberts  vs.  Arthur,  332. 
Roberts  vs.  Cunningham,  54. 
Robert  May's  Case,  91. 
Roberts  vs.  Richards,  66,  287,  297. 
Robinson  vs.  Black  Diamond  Coal 

Co.,  244. 
Robinson  vs.  Imperial  S.  M.  Co., 

135,  157,  158,  159- 
Rockwell  vs.  Highland  Ditch  Co., 

559- 
Rocki  vs.  Cone,  55. 
Rogers  vs.  Jones,  89,  193. 
Rominger   vs.    ySquares,    154,    175, 

259- 
Ross  vs.  Barland,  213. 
Ross  vs.  Duval,  146. 
Ross  vs.  Evans,  295. 
Ross  vs.  Faust,  54. 
Rowe  vs.  Granite  Bridge  Co.,  40. 
Royal  Fisheries  vs.  Banne,  40,  51, 

«3. 
Rudd  vs.  Williams,  67,  173. 
Rumsey  vs.  New  York  Ry.  Co.,  46. 
Rundell  vs.   Delaware   Canal  Co., 

54- 
Rupley  vs.  Welch,  332. 
Russell  vs.  vScott,  294. 


XXXVl 


TABLE    OF    CASES    CITED. 


(The  references  are  to  the  sections.) 


Stanford   vs.    P'elt,   276,    280,   329, 

330,  344. 

Stafford  vs.  Mangin,  54. 

Stark  vs.  Starrs,  124,  208. 

State  Freight  Tax,  42. 

State  vs.  Galvin,  201. 

State  vs.  Canterbury,  54. 

State  vs.  Cawood,  98. 

State  vs.  Columbia,  94. 

State  vs.  Driggs  Drainage  Co.  94. 

State  vs.  Dibble,  42,  54. 

State  vs.  Franklin  Falls  Co., 38,  83. 

State  vs.  Glen,  54. 

State  vs.  Gilmanton,  38,  39,  42,  54. 

State  vs.  Hickson,  54. 

State  vs.  Narrows  Irland  Club,  46, 

54- 
State  vs.  Poole,  54. 

State  vs.  Roberts,  83. 

State  Reservation   Com'rs,  In  re, 

82. 
State  vs.  Stover,  84. 
State  vs.  Swallow,  146. 
State  vs.  Thompson,  42. 
State  vs.  Tomlinson,  54. 
State  vs.  Waddingtou,  54. 
Steamboat  "Globe"  vs.  Kurtz,  41. 
vSteel  vs.  St.  Louis  Smelting  Co., 

140. 
Stein  vs.  Ashby,  54. 
Stein  vs.  Burden,    66,    6S,    73,    75, 

294,  321. 
Stein  Canal  Co.  vs.  Kern  Island, 

etc.  Co.,  175,  225. 
Stenson  vs.  Butler,  54. 
Stevens  vs.  Peterson  Ry.  Co..  64. 
Stevens  Point  Boon  Co.  vs.  Riley, 

54- 
Stewart  vs.  Chew,  334. 
Stewart  vs.  vStevens,  557. 
Stillman  vs.  W.  R.  Co.,  173. 
Stinson  vs.  <jeer,  143. 
Stoddart  vs.  Chambers,  136. 
Stockham  vs.  Browning,  64. 
Stockman  vs.  Riverside  L.  &  Irr. 

Co.,  260,  262. 


Stolph  vs.  Hoit,  52. 

Stonehewer  vs.  Farrar,  62,  250. 

Stoner  vs.  Rice,  87. 

Story  vs.  Hammond,  62. 

Stout  vs.  Keyes,  98. 

Stout  vs.  McAdams,  173. 

Stover  vs.  Freeman,  54. 

Stover  vs.  Jack,  43. 

Slowell  vs.  Johnson,  235,  252,  457. 

Stowell  vs.  Lincoln,  75. 

Strader  vs.  Graham,  127. 

vStrait  vs.  Brown,  48,  106,  135,  173, 

225,  230,  397. 
Strickler  vs.   Colo.    vSprings   Co., 

152,  153,  173,  265,  316,  556. 
Strickland  vs.  Todd,  81. 
Stringfellow  vs.  Cain,  140. 
Strong  vs.  Benedict,  90,  91. 
Strother  vs.  Lucas,  207. 
vStrout  vs.  Millbridge,  54. 
Strutt  vs.  Bovington,  70,  294. 
Stuart  vs.  Clark,  54. 
Stuart  vs.  People,  201. 
Stump  vs.  McNarra,  42. 
Slurr  vs.  Beck,   115,  191,  219,  220, 

286,  467,  477. 
Sutcliffe  vs.  Booth,  287,  297. 
Sullivan  vs.  Beardsley,  173. 
Sullivan  vs.  vSpottswood,  40,  54. 
Somers  vs.  Dickin.son,  138. 
Supervisors  vs.  United  States,  146, 
Supply  Ditch  Co.  vs.  Elliott,  559. 
Sutton  vs.  Casselleggi,  263. 
Swase}'  vs.  Brooks,  268. 
Sweetland  vs.  Olsen,  267,  268. 
Swett  vs.  Cutts,  39,  45,  79. 
Swift  vs.  Goodrich,  273,  274,  288, 

350. 
Swinton  Water  Co.  vs.  Wills  Canal 

Co.,  66. 
Suydam  vs.  Williamson,  146. 

T. 

Talbot  vs.  Hudson,  94. 
Tameling  vs.  United  States,  Free- 
hold, etc.,  T31,  T34. 


TABLE    OF    CASES    CITED. 


XXXVll 


(The  references  are  to  the  sections.) 


173. 


54- 


59. 


Tartar  vs.  Spring  Creek  Co 

174. 
Tate  vs.  Parish,  250. 

Tawlin  vs.  Dubuque  Ry.  Co. 
Taylor  vs.  Castle,  302. 
Taylor  vs.  Ely,  288. 
Taylor  vs.  Fickas,  49. 
Taylor  vs.  Gerrish,  93. 
Taylor  vs.  Meyers,  143. 
Taylor  vs.  Waters,  93. 
Taylor  vs.  Welch,  45,  49,    5' 

278,  282,  508. 
Taylor  vs.  Whitehead,  243. 
Taylor  vs.  Winona,  140. 
Tenant  vs.  Goldwin,  62,  250. 
Tenem  Ditch  Co.  vs.  Thorpe,  219, 
Terrett  vs.  Mahan,  223. 
Territtvs.  Taylor,  207. 
Thomas  vs.  Brackney,  250. 
Thomas  vs.  Chisholm,  155. 
Thomas  vs.  England,  256,  296. 
Thomas  vs.  Guiraud,  23,  150,  152, 

154,   159,     164,    167,    173,   228, 

233.  235.  254,  556,  573- 
Tliompson  vs.  Androscoggin  Co., 

40,  54- 
Thompson  vs.  Crocker,  61. 
Thompson  vs.  Doaksun,  133. 
Thompson  vs.  Felton,  295. 
Thompson  vs.  Lee,  157,  158,  159. 
Thorp  vs.  Freed,  89,  174,  185,  253, 

281. 
Thorp  vs.  Tenem,  417. 
Thorp  vs.  Wool  man,  173. 
Threadgill  vs.  Pintard,  141. 
Thunder    Bay    Booming    Co.    vs. 

Speechly,  41,  54- 
Thurman  vs.  Morrison.  54. 
Tibbitts  vs.  Ah  Tong,  155. 
Tide  Water  Co.  vs.  Coster,  94. 
Tilbury  vs.  Silva,  52,  53. 
Tillotson  vs.  Smith,  59,  75,  76,  193 
Timm  vs.  Bear,  76. 
Tinacum  Fishing  Co.  vs.  Carter,  54 
Tinsman  vs.  i'.elvidere,  64. 
Tipping  vs.  Kkersley,  91. 


Titcomb  vs.  Kirk,  89,  140,  156. 
Tolle  vs.  Correth,  73,  527. 
Tolman  vs.  Ca.sey,  337. 
Tombden  vs.  Building  Co.,  41. 
Tootle  vs.  Clifton,  75. 
Totel  vs.  Bonnefoy,  93.  108. 
Tourtelotvs.  Phelps,  56,  76. 
Townsend  vs.  Little,  140. 
Tovvnsend  vs.  McDonald,  66,  92. 
Treat  vs.  Bates,  61. 
Trent  vs.  Lord,  41. 
Tregea  vs.  Owens,  391. 
Trenouth  vs.  San  Francisco,  218. 
Tripp  vs.  Overocker,  556,  557. 
Trent  vs.  McDonald,  49. 
Trustees  vs.  Dennett,  87. 
Trustees  vs.  Schroll,  46. 
Trustees  vs.  Wagnon,  54. 
Tucker  vs.  Jones,  259,  267,  268,  269 
Tvicker  vs.  vSalem  P'louring  Mills 

Co.,  44,  294. 
Tudor     vs.    Cambridge     Water 

Works,  87. 
Tuolumne  W.  Co.  vs.    Chapman, 

159,  326,  332,  333. 
Turlock  Irr.  District  vs.  Williams, 

389,  390,  395. 
Turner  vs.  Holland,  54,  58. 
Turner  vs.  Tuolumne  Water  Co., 

244,  314,  324- 
Tuthill  vs.  Scott,  75. 
Twiss  vs.  Baldwin,  61,  76. 
Twogood  vs.  Hoyt,  54. 
Tyler  vs.  Green.  142. 
Tyler  vs.  Wilkinson,  52,  54,  56,  59, 

60,  61,  62,  67,  79,  80,  81,   173, 

.9,V  y 

Uhlbrick  vs.    Kufaula  Water  Co., 

67. 
Umber  vs.  Godfrey,  43. 
Umatilla  Irr.  Co.  vs.  Umatilla  Imp. 

Co.,  337,  507. 
Unger  vs.  Mooney,  295. 
'    Union  Dej).  Co.  vs.  Brunswick,  55. 


XXXVlll 


TABLE    OF    GASES    CITED. 


(The  references  are  to  the  sections  . ) 


Union  M.  &  M.  Co.  vs.  Dangberg, 
66,  67,  112,  191,  194,  207,  214, 
218,  273,  275,  276,  278,  280.  294, 

329.  331- 

Union  M.  &  M.  Co.  vs.  Ferris,  59, 
66,68,  69,  73,  76,  89,  112,  134 
146,  147,  148,  156,  188,  T91,  192, 
193,  194,  196,  199,  204,  207,  273, 
275,  280,  294.  295. 

Union  Pac.  Ry.  Co.  vs.  Watts,  143. 

Union  Water  Co.  vs.  Cary,  167,  173, 
181,  182,  223,  233,  256,  264.293, 
296,  294,  326,  333. 

Union  Water  Co.  vs.  Murphy  Flat- 
Fluming  Co.,  265. 

United  L,and  Co.  vs.  Great  East- 
ern, 91. 

United  States  vs.  Andres  Castil- 
lero,  126. 

United  States  vs.  Arredondo,  126, 

130.  131- 
United  States  vs.  Burlington,  etc., 

Co.,  217. 
United  States  vs.  Carpenter,  124, 

133- 
United  States  vs.  Cook,  133,  134. 
United  States  vs.  Constant,  128. 
United  States  vs.  DeAmisted,  12S. 
United  States  vs.  D'Auterive,  128. 
United  States  vs   DeWitt,  145- 
United   States  vs.  Freyberg,   208, 

219. 
United  States  vs.  Fitzgerald,  134, 

136, 142- 
United  States  vs.  Forty  Three  Gal. 

of  Whiskey,  126,  133. 
United  States  vs.  Fox,  145. 
United  States  vs.  Freyburry,  143. 
United  States  vs.  Gratiot,  147. 
United  States  vs.  Gear,  136. 
United  States  vs.  Gusman,  133. 
United  States  vs.  Kayana,  127. 
United  States  vs.  Jones,  94. 
United  States  vs.  Hughes,  194. 
United  States  vs.  Lane,  219. 


United  States  vs.   Lynde's  Heirs, 

128. 
United  States  vs.  Maxwell,  Land 

Grant,  127. 
United  States  vs.  Missouri  Ry.  Co., 

138. 
United  States  vs.  Payne,  133. 
United  States  vs.  Percheman,  128. 
LTnited  States  vs.  Philadelphia  & 

New  Orleans,  128. 
United  States  vs.  Railroad  Bridge, 

136. 
United  States  vs.  Reed,  143. 
United  States  vs.  Repentighy,  127. 
United  States  vs.  Rilleux,  133. 
United  States  vs.  Rogers,  134. 
United  States  vs.  Rynes,  128. 
United  States  vs.  Stone,  124,  208. 
United  States  vs.  Storrs,  219. 
United  States  vs.  Taylor,  219. 
United  States  vs.  Worrell,  201. 

V. 

Valley  W.  W.  vs.  Brinkhouse,  94. 

Van  Bergen  vs.  Van  Bergen,  80. 

Van  Breda  vs.  Silberbauer.  297. 

Van  Brooks  vs.  Water  Co..  156. 

Vancouver,  The,  41. 

Vanderburg  vs.  Vanderburg,  63. 

Van  Dolsen  vs.  New  York,  64. 

Van  Hoesen  vs.  Coventry,  60. 

Van  Orsdale  vs.  Ry.  Co.,  108. 

Van  Reynegen  vs.  Bolton,  131, 

Van  vSickles  vs.  Haines,  58,  iii, 
112,  116,  134, 135, 146,  191,  192, 
193,  194,  195,  196, 198,  199,  204, 

227,  331.  397- 
Van  Wicks  vs.  Knevals,  137,  189, 

190. 
Van  Winkle  vs.  Curtis,  301. 

Varick  vs.  vStnith,  54,  94. 
Vasse  vs.  Brownsville,  129. 
Veazie  vs.  Diurnell,  54. 
Veeder  vs.  Cruppy.  134. 
Vincennes  University  vs.  Indiana, 

1.39- 
Vyner  vs.  Mersej'  Docks,  89. 


TABLE    OF    CASES    CITED. 


XXXIX 


(The  references  are  to  the  sections,  i 


Wadsworth  vs.  Smith,  52,  54. 
Wadsworth  vs.  Tillotson,  59,  66,  76, 

173.  193- 
Wagner  vs  Bissell,  201. 
Wagner  vs.  Chaney,  61. 
Wainright  vs.  McCullough,  54. 
Wakins  vs.  Peck,  92. 
Walcott  vs.  Des  Moines,  187. 
Waldron  vs  Marsh.  334. 
Walker  vs.  Allen,  54. 
Walker  vs.  Board  of  Public  Works, 

42,  54- 
Walker  vs.  Smith,  143. 
Walker  vs.  Shepperdson,  54. 
Walker  vs.  State  Corn's,  146. 
Wall  vs.  Cloud,  268. 
Wallace  vs.  Parker,  127. 
Wallamet   Bridge  Co.  vs.   Hatch, 

40. 
Ware  vs.  Allen,  108. 

Ward  vs.  Ellis,  54. 

Ware  vs.  Cowles,  250. 

Ware  vs.  Hylton,  125. 

Ware  vs.  Walker,  173,  243,  24S. 

Waring  vs.  Jackson,  146. 

Warner  vs.  Southworth,  54,  287. 

Warren  vs.  Carey,  91. 

Warren  vs.  Chambers,  88. 

Warren  vs.  Syme,  297. 

Warren  vs.  Van  Brunt,  208. 

Washington  vs.  Shortall,  54. 

Water  &  M.  Co.  vs.  Clarkin,  323. 

Water  Co.  vs.  Powell,  233. 

Waters  vs.  Lilley,  40. 

Waterman  vs.  Johnson,  38,  47,  54, 

87,90. 
Watson  vs.  Peters,  54. 
Watterson  vs.  Saldunbehere,  323, 

342.        . 
Watts  vs.  Lindsey,  143. 
Weatherby  vs.  Micklejohn,  297. 
Weaver  vs.  Eureka  Lake  Co.,  150, 

151,  159, 160.  175.  225,  326,  345. 
Weaver  vs.  Conger,  161,  167,  182. 
Webber  vs.  Harbor  Com.,  64. 


Webber  vs.Pierre  Marquette  Boom 

Co.,  54. 
Webb   vs.  Portland   Mfg.  Co.,  59, 

63,69,75-  193.  321,329- 
Weiderkind  vs.  Tuolumne  Water 

350- 
Weill  vs.  Baldwin,  267. 

Weis  vs.  Madison,  39. 

Weise  vs.  Smith,  40,  41. 

Weiss  vs.  Oregon  I.  &  S.  Co.,  55, 

60,  81,  108,  218,  275,   278,   280, 

282,  330,  508. 
Well  vs.  Hornby,  83. 
Wells  vs.  Mantes,  346. 
Wells,  Fargo   &   Co.    vs.    Dayton, 

334. 
West  Roxbury  vs.  Stoddard, 38,  87. 

West  vs.  Taylor,  43,  45. 

Weston  vs.  Alden,  68,  72. 

Western  Pacific  Ry.  Co.  vs.  Tevis, 

212,  213,  219. 
Wetmore  vs.  Atlantic  White  Lead 

Co.,  82. 
Wetraarsh  vs.  Walker,  93. 
Wheatley  vs.  Baugh,  48,  49,  78,  79. 
Wheatley  vs.  Crisman,  60,  274. 
Wheeler  vs.   Northern  Colo.   Irr. 

Co.,  30,  152,  173,  184,  228,  235, 

266,  316,  317,  556,  559,  561,  572. 
Wheeler  vs.  Spinola,  42,  87. 
Wheeler  vs.  Worcester,  39,  61. 
Whetstone  vs.  Bowser,  48,  79. 
Whipple  vs.  Cumberland  Mfg.  Co. 

75,81. 
White  vs.  Hastings,  etc.,  Ry.  Co. 

215- 

White  vs.  Todd's  Valley  W.  Co., 

160,  175,  225,  238. 
Whitehead  vs.  Parks,  91. 
Whitman  vs.   St.  Paul  Ry.  Co.,  334 
Whitney  vs.  Morrow,  208. 
Whitney  vs.  Wheeler.  295. 
Whittier  vs.  Cacheco,  154. 
Wickersham  vs.  Bills,  268. 
Wilson    vs.  Blackbird  Marsh  Co., 

42. 


xl 


TABLE    OF   CASES   CITED. 


(The  references  are  to  the  sections.) 


Wilcox  vs.  Hausch,   io8,  163,  231, 

254- 
Wilcox  vs.  Jackson,   124,  133,  136, 

146,  208. 
Wilcoxon  vs.  McGee,  195. 
Wilkinson  vs.  Leeland,  207. 
Willard  vs.  Presbury,  145. 
Williams  vs.  Nelson,  256. 
Wilder  vs.  Wheeler,  91. 
Williams  vs.  Baker,   137,  138,  141, 

187,  209. 
Williams  vs.  Beard,  40. 
Williams  vs.  Gale,  61. 
Williams  vs.  Glover,  54. 
Williams  vs.  Morland,  81. 
Williams  vs.  Nelson,  294,  297. 
Williams  vs.  Suffolk  Ins.  Co.,  126. 
Williams  vs.  Sutton,  301. 
Williams  vs.  Wadsworth,  91,  284. 
Williams  vs.  Wilcox,  41,  53,  89. 
Williamsburg  Boom.  Co.  vs.  Smith, 

54. 
Wilkes    vs.    Hungerford    Market 

Co.,  64. 
Wilkins  vs.  McCue,  194. 
Wilklow  vs.  Lane,  294. 
Wilmington   Canal   &   R.    Co.  vs. 

Uominguez,  94. 
Wilson  vs.  Blackbird  Creek  Marsh 

Co.,  357- 
Wilson  vs.  Forbes,  54. 
Wilts   Canal   vs.    Swinton    Water 

Co.,  66. 
Wilson  vs.  Shively,  83. 
Winter  vs.  Winter,  294. 
Winona,  etc.,  Ry.  Co.  vs.  Barney, 

137,  141,  186,  188,  209. 
Winware  vs.  Works,  268. 
Wirth  vs.  Bronson,  124,  143. 
Wisconsin  Ry.  etc.  Co.  vs.  Lyons, 

54. 
Wisconsin  Cent.  Ry.  Co.  vs.  Price, 

141-  o 

Witherspoon  vs.  Duncan,  140,  2o», 

214,  219- 
Witt  vs.  Jefcoat,  40,  42. 
Wixon  vs.  B.  &  A.  W.  Co.,  106,  193. 


Wixon  vs.  Devine,  154,  173. 
Wolcott  vs.   D.   M.  Co.,   138,   141, 

187,  209. 
Wolf  vs.  St.  Louis  W.  Co.,  244,  324. 
Wolsey  vs.  Chapman,  137. 
Woods  vs.  Edds,  76,  80. 
Wood  vs.  Hustis,  54. 
Wood  vs.  Kelly.  87,  93. 
Woodruff  vs.  North  Bloomfield  G. 

M.  Co.,  89,  132,  148,  292. 
Wood  vs.  Waud,  56,  57,  59,  62,  66, 

70,  250,  287. 
Woodman  vs.  Tufts,  75. 
Wood  vs.  Fowler,  41,  55. 
Wood  vs.  Saunders,  91. 
Woodard  vs.  Wilcox,  288. 
Woodbury  vs.  Short,  82. 
Woodard  vs.  Worcester,  62,  250. 
Woolmau  vs.  Garringer,  150,  151, 
154,  159, 160,  161,  163,  16S,  184, 
210,  231,  233,  248,  254,  284,  255, 
256,  322. 
Worcester  vs.  Georgia,  125. 
Wright  vs.  Day,  54,  87. 
Wright  vs.  Howard,  56,  59,  80,  193. 
Wright  vs.  Newton,  91. 
Wright  vs.  Rosberry,  137,  215. 
Wulf  vs.  Manuel,  155. 
Wurts  vs.  Hoagland,  94. 
Wyatt  vs.  Larimer   &   Weld    Irr. 

Co.,  152,  3".  316,  556- 
Wyland  vs.  Middlesex,  94. 
Wythe  vs.  Smith,  260. 
Y. 

Yates  vs.  Judd,  54,  64. 
Yates  vs.  Milwaukee,  55,  64. 
Yarmouth  vs.  Simmons,  64. 
Yosemite  Valley  Case,  124,  219. 
Young  vs.  Harrison,  54. 
Yunker  vs.  Nichols.  270,  556,  557, 

570.        ^ 

Zimles  vs.  San  Luis  W.  Co.,  263. 
Zimmerman  vs  Union  Canal  Co.  54. 
Zug  vs.  Commonwealth,  54. 


PART  ONE. 


HISTOHY  m  GENERAL  PRINCIPLES, 


CHAPTER  I. 


Irriii-atioii  Past  and  Present. 


Sect 
I. 
2. 

3- 
4- 

5- 
6. 


I.    WHAT  IS  IRRIGATION. 

ion. — 

Definition. 

Nature  and  importance  of 
subject. 

Value  to  civilization. 

The  art  of  irrigation  and  its 
progress. 

The  theory  of  irrigation. 

How  irrigation  is  made  bene- 
ficial. 

7.  To   what  plant  life  irrigation 

is  best  adapted. 

8.  Legal  rights  of   the  irrigator. 

9.  Use  of  water  for  irrigation,  a 

natural    or    an    artificial 
want. 

II.    HI.STORY  OF  IRRlG.\TION  IN 
VARIOUS  COUNTRIES, 

10.  Ancient  knowledge  of  the  art 

in  Egypt. 

11.  vSame  —  Art    in     Egypt,    con- 

tinued. 

12.  Other    Ancient    Countries    of 

the  Old    World   acquainted 
with  the  art. 
First  traces  of  the  art  in  the 
New  World. — The  Incas. 

14.  The  Nahua  nations. 

15.  Nahua    nations,    continued. — 

Arizona. 

16.  A  Court  opinion  upon  the  his- 

tory of  the  subject. 


13 


Section.— 

17.  The  skill  with  which  Ancient 

Canals  were  constructed. 

III.    VAI^UE   OF   IRRIGATION   TO 
MODERN  CIVILIZATION. 

18.  British  India. 

19.  Africa. 

20.  Irrigation  in  other  Countries. 

21.  Irrigation  in  the  United  States 

— The  Arid  Region. 

22.  The  States  included  within  the 

Arid  Region. 

23.  The  first  of  modern  irrigation 

in  the  United  States. 

24.  Same — The  Mormons. 

25.  Same — Continued. 

26.  Census    of    irrigated    land   in 

i8y9. — Value  of  water. 

27.  Estimate   of   the  Department 

of  Agriculture  in  1891. 

28.  The  water  supply. 

29.  Same. — Increase  in  supply. 

30.  Suppression  of  wasting  waters. 

31.  Storage  reservoirs. 

32.  vSame. — Legal  contemplation. 

33.  Artesian  wells. 

34.  Supply  from  large  rivers. 

35.  The  present  condition  of  the 

art  of  irrigation  in  the  dif- 
ferent States  andTerritories. 

36.  Future    of    irrigation    in    the 

United  States. 


2  IRRIGATION    PAST    AND    PRESENT.  [§  1,  2. 

I.  What  is  Irrigjition .' 

§1.  Deflnitiou. —  "Irrigation  is  the  operation  of  watering- 
lands  for  agricultural  purposes  b}'  artificial  means. "^ 

It  is  "  the  act  of  wetting  or   moistening   the   ground    by 
artificial  means. "^ 

Or,  as  Webster  sa3'S,  "  The  act  of  watering  or  moistening, 
especially  the  operation  of  causing  water  to  flow  over  lands 
for  nourishing  of  plants."  It  is  a  method  of  producing  or 
increasing  fertility  in  soils  by  an  artificial  supply  of  water, 
permitted  to  flow  over  the  land  by  means  of  small  trenches 
or  by  inundation  at  stated  periods.  Irrigation  is  accom- 
plished by  means  of  canals  or  ditches,  which  divert  the  water 
directly  from  some  remote  water  course,  lake  or  pond,  and 
conduct  it  to  the  place  where  it  is  to  be  used.  Or  it  may  in 
certain  localities  be  accomplished  by  sinking  artesian  wells  to 
a  depth  sufiicient  to  strike  an  underground  current  or  water 
course,  the  water  of  which  coming  from  an  elevated  source, 
by  its  own  pressure  forces  itself  to  the  surface,  and  is  then 
conducted  to  the  place  where  it  is  to  be  used,  by  means  of 
works  constructed  for  the  purpose,  to  moisten  the  soil.^ 

§  2.  Nature  and  Iiuportauce  of  Siil)ject.— The  enriching 
and  improving  of  land  by  means  of  water  is  an  object  of 
enormous  importance  throughout  a  great  part  of  the  globe. 
In  some  countries  nature  alone  applies  this  powerful  means 
of  improvement.  In  others  it  is  effected  by  nature  for 
the  most  part,  occasionally  or  partially  modified  by  human 
skill  or  labor.  In  some  parts  irrigation  as  a  mode  of  improve- 
ment upon  nature's  effort  is  effected  principally  by  the 
labor  of  man;  and  in  all  cases  this  agency  of  water,  skillfully 
applied,  is  more  or  less  useful,  according  to  the  circumstances 

1 II.   Anier.   &   Eug.   Eucyc.    of  to  denote  the  application  of  water 

law  846.     Rap.  Law.  Diet.  682.  to  lands    for   the  raising  of  agri- 

SBouvier's   Law   Diet.     Subject  cultural  crops  and  other  products 

Irrigation.  of  the  soil.     Piatt  Valley  Co.  vs. 

3  The  word  "irrigation,"  in  the  Northern  Colorado  Irrigation  Co. 

Colorado  Irrigation   Acts  of   1879  12  Colo.  525;  2  Denver  Leg.  News, 

and  1881,  is  used,  according  to  the  201;  21  Pac.  Rep.  711. 
common   parlance  of  the  people, 


§2.]  IRRIGATION    PAST    AND    PRESENT.  3 

of  the  case.  It  may  be  emploj^ed  for  meliorating  the 
soils  of  different  characters,  and  for  increasing  the  amount 
of  their  products  as  well  as  adding  to  the  forms  of  plant  life. 
The  tropical  rivers  convey  to  the  plains  over  which  they  flow 
those  annual  and  immense  supplies  of  enriching  deposits 
which  nourish  the  products  of  the  soil,  or  they  tend  to 
form  and  enrich  those  vast  savannahs  which  occur  in 
those  parts.  Again,  in  the  warm  but  more  temperate 
climates  there  are  immense  tracts  of  land  which  for  vege- 
tation have  only  here  and  there  patches  of  grease-wood 
and  sage  brush,  and  which,  if  not  irrigated,  so  far  as  any 
use  to  civilization  is  concerned,  might  as  well  be  wholl}'- 
barren.  Instructed  by  nature  and  improved  bj'  experience 
in  the  use  of  this  element  for  ameliorating  the  soil,  man- 
kind has  already  felt  its  great  value  and  importance  from 
the  equator  to  nearh'  the  6oth  degree  north  latitude,  and 
extending  in  a  more  limited  scale  partly  into  the  southern 
temperate  zone.  The  periodical  rains  within  the  tropics 
would  not  be  sufficient,  in  that  burning  climate,  to  nourish 
the  crops  necessary  to  support  the  population  had  not  nature 
by  means  of  her  might}'  rivers  and  streams  come  to  their 
aid,  and  if  art  and  labor  were  not  also  employed  in  irrigating 
and  fertilizing  vast  tracts  of  land.  Even  in  the  vineyards, 
fields  and  orchards  in  the  milder  climates  of  Italy  and  France 
immense  profits  and  advantages  are  derived  from  this  mode 
of  improvement  by  the  judicious  application  of  water  to  the 
earth.  Irrigation  when  properly  conducted,  with  care  and 
forethought,  has  a  tendenc}'  to  improve  the  soil  as  well  as 
the  climate  of  the  surrounding  country,  while  the  elements 
of  the  water  are  at  the  same  time  directed  to  purposes  the 
most  useful  and  profitable  to  mankind.  The  advantages  of 
this  mode  of  improvement  are  of  course  greatest  in  the  pop- 
ulous districts,  where  a  small  amount  of  land  owned  by 
one  person  may  be  brought  under  a  very  high  grade  of 
cultivation  and  be  made  productive  of  crops  of  a  superior 
value;  and  where  the  labor  necessary  to  be  bestowed  upon 
the  land  may  be  had  at  an  inferior  price.  But  upon  the 
great  plains  and  high  plateaus  of  the  Arid  Region  of  the 
United  States,    where  the  population  is  exceedingly  sparse, 


4  IRRIGATION    PAST    AND    PRESENT.  [§2,3. 

water   is   valuable    wherever    it    can   be  safel}'    directed    for 
irrigating   purposes. 

§  3.  Value  to  Civilizjitioii. — It  is  not  always  an  eas}^  matter 
to  convince  mankind  how  much  is  really  within  the  power  of 
human  skill  and  industry.  In  one  age  it  is  impossible  to 
make  men  realize  what  the  possibilities  of  the  next  generation 
may  be.  The  first  settlers  in  the  American  colonies  would 
not  have  then  believed,  had  it  been  pointed  out  to  them,  what 
improvements,  even  in  the  climate,  were  to  follow  the  draining 
and  cultivation  of  their  lands  after  the  forests  had  disappeared. 
Undoubtedly  many  ages  elapsed  before  the  people  of  Egypt 
were  capable  of  duly  appreciating  the  full  value  of  the  swell 
of  the  Nile,  and  of  turning  its  enriching  floods  to  the  utmost 
possible  advantage.  The  treatment  and  cultivation  of  the 
various  kinds  of  soils,  enriched  b}'  flooding,  the  application 
of  industry  and  skill  in  the  methods  by  which  it  is  performed, 
and  the  selection  of  the  crops  best  adapted  to  the  different 
soils,  have  required  time  and  patience,  until  irrigation  as  it  is 
to-day  appears  as  a  part  of  an  extensive  system  of  national 
economy,  embracing  the  husbandry  of  every  country  in  which 
this  art  is  applied.  Immensely  increased  crops  of  all  kinds 
have  been  raised  even  in  those  localities  which  have  naturally 
a  damp  and  humid  atmosphere,  within  the  present  age,  by 
means  of  irrigation,  and  localities  that  were  entirely  desert 
have  been  reclaimed  and  made  possible  for  the  habitation  of 
man  by  this  means.  An  increasing  population  in  the  locali- 
ties irrigated  has  at  once  furnished  the  labor  necessar)-  and 
markets  for  the  produce.  On  the  other  hand,  it  cannot  be 
denied  that  errors  have  been  committed  in  the  appliance 
and  practice  of  the  art.  It  has  been  tried  in  situations 
where  nature  did  not  favor  success,  and  it  has  been  employed 
in  order  to  force  a  product  for  which  there  was  not  an  ade- 
quate demand  ;  in  some  localities  it  has  been  carried  to 
such  an  extent  that  it  exceeded  the  proper  supplies  of  labor 
within  the  district;  and  in  all  such  cases,  or  similar  ones, 
the  failure  has  been  most  unjustly  attributed  to  the  art 
itself,  when  in  fact  it  arose  from  errors  in  judgment  or 
foresight  on  the  part  of  those  who  conducted  the  operations. 


§  3,  4.]  IRRIGATION    PAST    AND    PRESENT.  5 

But,  without  requisite  skill  and  attention,  it  is  evident  that 
no  undertaking  can  prosper;  errors,  therefore,  which  occur 
from  this  cause,  ought  in  no  degree  to  bring  discredit  on 
the  art  itself. 

§4.    The  Art   of  Irrii;atioii   aud   its  Progress.— As  the 

years  have  gone  by  the  art  of  irrigation  in  the  latter  part  of 
this  nineteenth  century,  by  careful  research,  fully  considered 
and  enlarged  observation,  and  the  experience  of  ages,  has 
been  so  highly  improved  in  some  parts  of  the  world  as  to 
have  become  almost  a  science,  or  at  any  rate  it  has  taken  on 
a  scientific  character.  Its  features  vary,  indeed  they  are  so 
unlike  in  different  climates  as  hardly  to  permit  us  to  view 
them  in  the  same  light.  Looking  towards  the  banks  of  the 
Tigris  and  Euphrates  we  see  the  patient,  plodding,  oxen 
laboriously  raising  the  water  from  the  streams,  in  buckets 
made  of  bullock  skins;  the  machinery  used  is  of  the  crudest 
possible  character  ;  yet,  with  this  aid  the  water  is  led  into 
little  trenches,  which  readily  conduct  it  to  the  thirsty  patches 
of  soil  under  cultivation.  Over  in  India  we  find  immense 
canals  and  acqueducts  constructed  by  the  government  at  an 
enormous  expense.  Here  whole  provinces  have  been  re- 
claimed from  the  natural  desert  state  and  converted 
into  the  most  fertile  and  fruitful  regions  of  the  earth. 
In  our  own  country  we  find  hundreds  upon  hundreds  of 
miles  of  mains  and  laterals  built,  or  being  built.  And, 
although  great  ingenuity  and  considerable  diversity  appear 
in  these  different  systems  we  do  not  hesitate  to  pronounce 
them  all  justly  included  under  the  one  great  art  of  irrigation. 
The  shepherd  who  properly  directs  the  course  of  a  mountain 
streamlet  or  turns  the  collected  waters  of  his  streams,  in  order 
to  prevent  stagnation  or  waste,  and,  of  course,  to  promote  the 
health  of  his  flocks,  at  the  same  time  directing  the  waters  in 
such  a  manner  as  to  fertilize  the  barren  spots  of  soil,  and  thus 
to  furnish  additional  supplies  of  food,  really  belongs  to  the 
same  class  of  artists,  as  those  who  by  more  elaborate  surveys 
and  skillful  engineering,  and  enormous  capital  and  labor 
expended,  are  able  to  direct  to  the  most  useful  ends  the  vast 
inundations  of  tropical   rivers.     The  features    of  this    art    of 


6  IRRIGATION    PAST    AND    PRESENT.  [§  4.  5. 

irrigation    appear    very    differently,    but    the    result    is    the 
same. 

§  5.  Tlie   Tlieory   of    Irrigation. — The    fact    that    water 
artificiall}^  applied  to  lands  produces  crops  upon  some  portions 
which  were  absolutely  barren  without  it,  and  increases  the 
yield  upon  others,  may  be  attributed  to  the  following  causes: 
First,    as  the  temperature  of  the  water  is  rarely  below  ten 
degrees  Fahr.  above  freezing,  it  prevents  the  frosts  in  winter 
from  injuring  the  plants  by  heaving  the  soil,  raising  the  roots 
to  the  surface  and  freezing  them;  the  growth,  especially  of  the 
roots,  is  encouraged.      Second,  nourishment  is  brought  to  the 
soil  in  the  shape  of  sediment  and  mineral  substances  carried 
in  solution  which  are  of  the  nature  of  plant  food,  and  which 
are  absorbed  and  retained  both  for  immediate  and  future  use. 
Third,  the  plant  food  already  present  in   the  soil   itself  is  by 
the  action  of  the  water  brought  in  contact   with   the   roots 
of  the  plants;   and  lastly,    the  retention  in    the    soil    of  the 
various  plant  foods  prevents  it  being  worn  out  at  the    end 
of    a    few    seasons,    and    constanth^    improves    it.       To    the 
united   agency    of  the    above    named    causes    may  safely  be 
attributed    the    benefits    that   arise  from  irrigation.     It   also 
appears  that  there  is  a  great  benefit  derived  from  the  mere 
contact    of  abundance    of    moving   water    of    an    even    tem- 
perature with  the  roots  of  the  various  plants.     Why  cannot 
crops  be  grown  without  irrigation,  in  a  dry  desert  country  ? 
It  is  simply  because  the  amount  of  moisture  evaporated  from 
the  surface  of  leaves  and  stems    in  our  commonly  cultivated 
plants  is  so  much  greater  in  an  arid  climate  than  the   amount 
which  their  roots  can  absorb  that  the  plant  dries  up  and  dies. 
There   are  many    species    of  native  plants  in  our  most  arid 
deserts,  but  their  tissues  are  so  constituted  that  the  process 
of  evaporation,    or  transpiration  as  it  is  called  in  vegetable 
physiology,  is  exceedingly  restricted,  even  under  conditions 
of  great  drought,  when  transpiration  is  most  rapid.    Upon  the 
other  hand,  nearly  all  of  our  food  plants  have  originated  in, 
and  are  natives  of,  humid  climates,  and  are  therefore  incom- 
petent to  cope  with  the  hot,  dry  soil  and  atmosphere  of  an 
arid  climate,  without  an  additional  supply  of  moisture  being 


§  5,  6.]  IRRIGATION    PAST   AND    PREvSENT.  7 

furnished  artificially.  The  most  perfect  and  the  most  natural 
ke)'  to  the  agricultural  capacit}'  of  any  region  is  its  original 
vegetation.  In  the  plants  of  the  desert  regions  the  thick 
cuticle,  the  covering  of  felted  hairs,  the  reduced  leaf  surface 
and  the  almost  sombre  grey  colors  are  some  of  the  evidences 
of  aridity.  In  the  humid  regions,  the  broad  thia  leaves  and 
the  bright  green  color  of  the  vegetation,  indicative  of  a  thin 
cuticle,  and  the  absence  of  a  protective  hairy  blanket,  are  all 
evident  signs  of  adaption  to  different  conditions  of  humidity. 
The  physiological  eifect  of  irrigation  is  to  furnish,  for  absorp- 
tion by  the  roots  of  the  plants,  sufficient  moisture  to  balance 
the  excessive  amount  transpirated  from  the  leaves. 

§  0.  How  Irrigation  is  Keiieficial.— In  what  manner,  then, 
does  water  operate  in  fertilizing  barren  soils,  and  in  increasing 
their   product  ?      As    an    element   itself  it    furnishes    direct 
supplies  of  food  which  are  partly  required  for  plant  life  ;  as 
a   medium   for   moderating  the  temperature  of  the  climate, 
it   lessens    the   rigor   of  the    intense   cold    in   some  regions, 
and  of  intense  heat  in    others  ;    as    a    destroyer   of  noxious 
weeds,    and    of    insects,    it    often    entirely   extirpates   these 
when    under    proper   direction  ;    as    a    means    of    conveying 
fertilizing  and  enriching  substances  to  the  soil,   it    may    be 
used  with  great  success.     In  the  various  modes  of  operation 
there    occur    numerous    features,    varying    with    the    locali- 
ties  and    their   surroundings,    and   all    these    must   be   well 
considered  in  order  to  secure  most  of  those  beneficial  effects 
which  water  is  qualified  to  promote  by  means  of  irrigation. 
It  follows,  therefore,  tliat  great  attention  ought  to  be  given  to 
the    qualities   of  water   intended    for  the  purpose  ;   and  that 
before  incurring  great  labor  or  expense  in  the  application  of 
it    these   qualities   ought  first  to  be  known.     This    may    be 
done  partly  by  analysis,  but  most  certainly  by  experiments 
conducted  on  a  moderate  scale,  until  it  is  fully  determined 
just  what  is  best  under  all  circumstances  of  the  case.     In 
general,  spring  waters    are  very    fertilizing   and    possess    an 
equable   temperature,    !)ut    impregnations   of  iron  and  some 
other  minerals  are  quite  frequent,  especially  in  mountainous 
districts,  even    in  springs,  and  should  be  avoided  ;    mount- 


8  IRRIGATION    PAST    AND    PRESENT.  [§  6,  7- 

ainous  streams  which  hold  lime  in  solution  are  very  fertiliz- 
ing ;  such  streams  as  conve}'  enriching  sediment  and  silt  are 
the  best  and  most  effectual  for  permanent  improvement  of  the 
soil. 

The  natural  produce  for  which  irrigation  is  best  adapted, 
in  particular  soils  and  climates,  comes  next  under  consider- 
ation. Here  the  mere  operator  is  not  always  a  competent 
judge,  and  it  ma}^  require  the  combined  lights  of  history, 
tradition,  observation  and  experience  to  ascertain  the  fact ; 
but  there  is  no  doubt  that  it  may  be  ascertained  with  a  con- 
siderable degree  of  assurance  before  expensive  efforts  are 
made.  The  qualities  of  the  waters  and  soil,  and  the  natural 
produce  wdiicli  a  .combination  of  the  two  nourishes  most 
effectually  being  discovered  in  the  first  place,  it  belongs  to 
the  operator  to  consider  the  population  and  markets  of  the 
district,  his  own  demands,  the  amount  of  competition  and  the 
nature  and  extent  of  the  irrigated  crops  by  which  he  may 
expect  to  derive  the  most  profit. 

§7.  To  What  Plant  Life  Irrigation  is  Best  Adapted.— 

There  is  an  impression  among  some,  especially  in  the 
Eastern  States,  that  irrigation  can  be  successfully  applied 
only  to  certain  branches  of  agriculture:  that  horticulture  is 
the  industry  especially  benefitted  by  it,  and  that  nowhere  else 
does  it  very  much  better  the  aspect,  financialU'  or  otherwise. 
It  is  true  that  fruit  culture  will  usually  give  larger  returns 
per  acre  under  irrigation  than  most  other  branches;  but  it 
also  does  this  under  ordinary  conditions.  The  desirable 
points  of  a  more  certain  crop  and  a  larger  yield  are  just 
as  certainly  secured  with  wheat,  corn,  alfalfa  and  potatoes  as 
with  oranges,  lemons  and  apples.  Stock  and  horse  raising 
are  also  as  much  benefitted  by  irrigation,  as  pastures  are 
always  kept  green  and  fresh  and  great  crops  of  hay  and  fodder 
are  produced.  Alfalfa  or  lucerne,  the  great  forage  crop  of  the 
arid  regions  of  the  United  States,  is  made  to  give  four  or 
five  crops  a  year,  which  aggregate  a  tonnage  it  would 
be  impossible  to  secure  from  any  meadow  under  ordinary 
conditions  in  the  Eastern  States,  and  which  in  value  will 
closely  rival  a  productive  fruit  orchard.       Grain    crops   and 


§  7,  8.]  IRRIGATION    PAST    AND    PRESENT.  9 

potatoes  may  likewise  be  largeh-  increased,  and  almost  every 
product  known  to  agriculture  will  not  onl}'  yield  more,  but 
will  also  give  a  greater  return  above  the  cost  of  production. 
Especially  valuable  is  irrigation  in  raising  vegetables  and 
garden  produce.  Near  the  cities  and  towns  of  the  arid  regions 
the  market  gardeners,  upon  a  small  patch  of  ground  of  five  to 
ten  acres,  properl}'  irrigated,  can  raise  an  amount  of  produce 
that  would  surprise  the  gardeners  of  the  Eastern  States  who 
depend  simph^  upon  the  rainfall,  although  the  eastern  gardeners 
raay  have  several  times  the  amount  of  land  under  cultivation. 
One  of  the  greatest  proofs  of  the  value  of  irrigation  lies  in 
the  fact  that  no  farmer  who  has  once  practiced  it  would 
willingly  return  to  the  pursuit  of  agriculture  in  any  district 
where  he  would  be  dependent  upon  the  natural  and  unevenly 
distributed  rainfall.  Even  in  the  regions  where  the  rain-fall 
is  usually  ample  for  the  growth  and  ripening  of  the  fruit  or 
crops  the  art  of  irrigation  is  becoming  each  year  more  and 
more  a  valuable  adjunct  to  the  natural  rain-fall.  The 
satisfaction  of  knowing  that  the  labor  of  a  .season  will  not  be 
rendered  void  because  of  a  week  of  drought  coming  just  at 
the  time  when  the  plants  need  the  moisture  most,  is  one 
that  cannot  be  too  much  appreciated.  The  normal  condition 
of  the  average  farmer  who  depends  upon  the  fall  of  rain  is 
one  of  anxiet}'.  He  must  wait  for  rains  in  order  to  plow,  to 
sow,  to  cultivate.  His  work  is  often  delayed  because  they  do 
not  come.  The  farmer  who  irrigates  has  the  water  under  con- 
trol. He  turns  on  the  amount  needed,  and  fits  his  land  readily 
for  any  of  these  operations.  He  is  sure  of  his  supply  of  water, 
regardless  of  the  condition  of  the  weather.  Should  the  rain- 
fall be  sufficient  to  supply  the  necessary  moisture  he  needs 
only  to  suspend  his  irrigating  operations  for  the  time  being. 

§8.  Lef;al  Ui;;lils  of  tlics  lrriu:at<>r. — Also  la.st,  but 
by  no  means  least,  the  operator  must  be  ^thoroughly 
familiar  with  his  legal  standing,  as  for  instance,  if  he 
claims  the  water  of  a  natural  stream  by  virtue  simply  of 
an  appropriation  of  the  same  he  must  understand  thor- 
oughly what  his  rights  are  under  the  laws  of  the  country  to 
his  appropriation  as  against  other  apj^ropriators,  either  jirior 


10  IRRIGATION    PAST    AND    PRESENT.  [§  8,  9. 

or  subsequent  to  him,  and  as  against  persons  who  own  land 
through  which,  or  adjoining  which,  the  stream  flows  and  who 
claim  the  use  of  the  waters  by  virtue  of  their  riparian  rights 
in  and  to  the  same.  Again,  if  the  operator  claims  the  use 
of  the  water  b)'  virtue  of  his  riparian  rights  accruing  from 
the  circumstances  of  the  locality  of  his  land  upon  the  stream, 
he  must  understand  the  laws  of  the  country  relative  to  his 
right  to  divert  the  water  from  the  natural  stream  by  virtue  of 
his  position  upon  the  same,  his  rights  as  against  his  neighbors 
who  have  similar  riparian  rights  from  the  fact  that  their  lands 
also  adjoin  the  stream,  and  who,  perhaps,  may  insist  that  the 
stream  continue  to  flow  in  its  natural  channel,  undiminished 
in  quantity  and  undeteriorated  in  quality;  his  rights  as  against 
those  who  claim  the  waters  simply  b}'  an  appropriation  of  the 
same,  either  coming  prior  or  subsequent  to  the  time  when  his 
riparian  rights  first  vested,  either  in  himself  or  his  grantors. 
All  these  questions  should  be  understood  as  thoroughly  as 
possible  before  the  operator  invests  too  great  a  sum  in  the 
enterprise.  In  man}'  localities  may  be  found  canals  and 
irrigating  works  which  have  been  constructed  with  great 
expenditure  of  mone}'  and  labor,  and  which  have  been  aban- 
doned because  the  projector  did  not  completely  take  into 
consideration  one  or  more  of  these  questions.  A  prudent 
man  will  be  determined  in  a  considerable  degree  b}'  these 
considerations  before  he  embarks  too  deeply  in  the  undertak- 
ing. And,  by  the  careful  consideration  of  these  questions,  he 
may  thus  avert  disaster  to  the  enterprise,  financial  ruin  to 
himself,  and  reflection  upon  the  art  of  irrigation. 

§  1).  Use  of  >V;iter  for  iri-igatioii,  Ji  Natural  or  an 
Artificial  Want. — The  authorities  upon  the  subject  seem 
to  differ  considerably  as  to  whether  water  for  irrigation 
is  a  natural  or  an  artificial  want.  The  distinction  betw^een 
' '  natural  ' '  .  and  ' '  artificial " '  wants  seems  to  be  derived 
from  a  distinction  prev^oush'  made  b}-  the  authorities, 
and  which  has  sometimes  been  designated  as  a  difference 
between  the  use  of  water  for  "ordinary"  and  "extraordinary" 
purposes.  x\s  these  terms  are  applied  under  the  common 
law  rules,  "natural  wants"  are  supplied  by  the  "ordinary"  use 


§  9.]  IRRIGATION    PAST    AND    PRESENT.  1 1 

of  the  waters  of  the  stream,  while  the  "  artificial  "  wants  are 
supplied  by  the  '  'extraordinar}-' '  use  of  the  water.  The  natural 
wants  are  defined  as  including  the  use  of  water  for  domestic 
purposes  at  the  home  or  farm,  such  as  drinking,  washing  or 
cooking  and  for  watering  stock, ^  while  artificial  wants  are 
defined  under  the  common  law  theories  as  any  want  not 
included  among  the  natural  wants.  The  difficulty  into  which 
the  writers  upon  this  subject  have  fallen  seems  to  have  been 
from  endeavoring  to  apply  this  principle  of  "natural"  and 
"artificial"  wants  to  mixed  classes  of  those  different  rights  to 
use  the  water.  It  must  be  borne  in  mind  that  there  are  two 
separate  and  distinct  systems  of  water  rights  in  the  arid  regions 
of  the  United  States:  one,  the  arid  region  doctrine,  whose  law 
is  priority  of  appropriation;  the  other,  the  common  law  doc- 
trine, w^hose  basis  is  equality  between  all  those  who  own  lands 
upon  the  stream.  Among  riparian  owners,  in  accordance 
with  the  common  law  doctrine,  the  use  of  water  for  irrigation 
is  an  extraordinary  use,  and  is  beyond  all  question  to  supply 
an  artificial  want.  All  the  rights  of  the  riparian  proprietors 
upon  the  same  stream  are  equal,  and,  if  all  have  had  their 
natural  wants  supplied,  and  there  is  still  water  in  the  stream, 
they  all  have  an  equal  right  to  use  the  surplus  for  any  arti- 
ficial purpose  or  want.  But,  upon  the  other  hand,  in  a  hot 
and  arid  climate  water  is  indispensable  for  the  cultivation  of 
the  soil,  and,  as  between  those  who  claim  the  water  by  the 
priority  of  their  different  appropriations  water  for  irrigation 
may  be  classified  as  a  natural  want.  This  question  was  dis- 
cussed at  length  by  the  Supreme  'Court  of  Illinois,  in  the  case 
of  Evans  z-^-.  Merriweather,^  in  which  the  court  said :  '  'The  use 
must  be  a  reasonable  one.  Now,  the  question  fairly  arises,  is 
that  a  reasonable  use  of  running  water,  by  the  upper  proprietor, 
by  which  the  fluid  is  entirely  consumed  ?  To  answer  the 
question  satisfactorily,  it  is  joroper  to  consider  the  wants  in 
regard  to  the  elements  of  water.  These  wants  are  either 
natural  or  artificial.  Natural  arc  such  as  are  al)S()lutely  neces- 
sary to  be  supplied,  in  order  to  his  existence;  artificial,  such 

1  See  (ioulil  on   Waters,    section       -  Kvaiis  vs.  Menivveallier,  .^  Scam. 
205.  492,  ^95;  3S  Anier.  Dec.    106. 


12  IRRIGATION    PAST    AND    PRESENT.  [^  9,  10. 

only  as  by  suppl3dng  them,  his  comfort  and  prosperity  are 
increased.  To  quench  thirst  and  for  household  purposes, 
water  is  absolutely  indispensable.  In  civilized  life,  water  for 
cattle  is  also  necessary.  These  wants  must  be  supplied,  or 
both  man  and  beast  will  perish.  The  suppl)^  of  a  man's 
artificial  wants  is  not  necessary  to  his  existence;  he  could 
live  if  water  was  not  employed  to  irrigate  his  lands,  or  in 
propelling  his  machinery.  In  countries  differently^  situated 
from  ours,  with  a  hot  and  arid  climate,  water  doubtless  is 
indispensable  for  the  cultivation  of  the  soil,  and  in  these,  water 
for  irrigation  would  be  a  natural  want. ' '  Hence,  it  follows,  that 
if  the  prior  proprietor  should  consume  all  the  water  of  a  small 
stream  for  irrigating  his  land,  without  waste,  it  would  still  be 
to  suppl}'  his  natural  wants. ^ 


II.  History  of  IiTigation  in  Tarioiis  Countries. 

§10.  Ancient  Knowledge  of  the  Art  in  Egypt. —That 
irrigation  is  a  very  ancient  art,  and  that  it  was  practiced 
by  the  earlier  nations  of  the  earth  upon  a  most  magnifi- 
cent scale  there  can  be  no  possible  question.  Historians 
and  other  writers  differ  considerably  as  to  where  the  art 
was  first  practiced.  Some  writers  have  placed  its  localit}^  in 
China,  some  in  India  and  some  in  Armenia  ;  others  have 
placed  its  first  inception  among  the  ancient  nations  along 
the  shores  of  the  Mediterranean  ;  others  with  the  Incas  of 
Peru,  and  still  others  with  the  Nahua  Nations — which 
include  the  Toltecs  and  Aztecs  in  Central  America,  Mexico 
and  Arizona,  which  from  these  evidences  of  civilization, 
although  as  ancient  as  any  known  part  of  the  globe,  is  com- 
monly called  the  New  World.  But  owing  to  the  numerous 
monumental  tablets  and  sarcophagi,  potsherds  and  papyrus 
rolls  which  have  been  in  the  ages  past  discovered  and  trans- 
lated, modern  research  has  been  enabled   to  carry  the  clear 

1  See    Chapter  VIII,    Sec.   225—  Harnett,  in  Bear  River  &  Auburn 

232,   as   to   amount  of  water  that  W.   Co.  vs.  N.  Y.  M.  Co.,  8  Cal. 

may  be  diverged  for  any  purpose.  327. 
See  also   opinion    of   Mr.    Justice 


§  10.]  IIIRIGATIOX    I'A^T    AND    1•RESE^'T.  13 

and  consecutive  history  of  Egypt  farther  back  than  that  of 
any  other  country,  and  Egypt  is  consequently  generally 
considered  the  birth  place  of  irrigation.  But  the  exact  date 
has  never  been  fixed  upon.  And  so  long  as  the  leading  Egypt- 
ologists disagree  on  the  question  of  dates  among  themselves, 
sometimes  by  more  than  a  thousand  3'ears,  it  is  in  vain  to 
attempt  to  fix  the  origin  of  regulated  irrigation;  but  we  may 
be  sure  that  at  least  2000  jxars  before  Christ  it  was  quite 
extensively  practiced  in  Egypt.  In  tracing  back  the  history 
of  the  most  ancient  nations,  however,  we  find  that  what  is 
true  as  to  other  countries,  is  more  especially  so  of  Egypt. 
At  the  ver}^  earliest  date  to  which  historians  have  been 
able  to  trace  them,  their  arts  and  industrial  pursuits  were 
as  perfect  and  elaborate,  and  carried  to  as  high  a  state  of 
perfection  as  at  the  later  periods,  and  almost  inestimably 
higher  than  the  civilization  of  the  degenerate  races  of  people 
who  roam  over  these  same  lands  to-day.  In  Egypt  those 
public  works  for  irrigation  which  have  been  decided  the 
earliest  are  on  a  much  greater  scale  and  more  perfect  in 
details  than  the  later  ones,  and  as  compared  with  those 
of  to-day  may  be  truly  classed,  with  its  ancient  civiliza- 
tion and  literature,  amongst  the  lost  arts  of  that  country. 
From  ancient  writings  recently  discovered,  and  from  recent 
examinations  of  the  condition  of  the  Nile  above  Cairo  by 
scientists  and  explorers,  the  conclusion  has  been  reached 
that  the  six  cataracts  from  Assouan  to  near  Kartoum,  in 
the  river  Nile,  were  not,  as  has  been  supposed  for  ages, 
the  work  of  Nature  but  of  ancient  and  scientific  engineering 
for  the  purposes  of  both  irrigation  and  navigation.  Engineer- 
ing at  once  bold  in  its  conception  and  colossal  in  its  execution. 
That  it  had  also  been  most  successful  in  its  results  was  evident 
from  the  remains  of  irrigating  canals  still  stretching  over  many 
degrees  of  longitude  on  both  sides  of  the  river,  as  well  as  by 
the  ancient  records  of  flourishing  cities,  where  now  only 
barren  wastes  are  to  be  found,  inhabited  by  roving  tribes 
of  Arabs.  These  canals  and  these  ruins  are  by  no  means 
confined  to  the  valley  of  the  Nile  proper,  but  they  reach  to  the 
very  confines  of  the  Great  Desert.  Gordon  speaks  of  the 
ancient  irrigation  canals  as  pervading  the  whole  vSoudan,  as 


14  IRRIGATION    PAST    AND    PRESENT.         [§  10,  11. 

well  as  what  is  now  desert,  on  the  northern  side  of  the  Nile 
from  the  Mediterranean  to  latitude  15°  north,  if  not  further, 
and  man}^  degrees  of  longitude  west,  as  well  as  east  of  the 
Nile  valley  proper.  Scientists  were  led  to  this  belief  that 
the  cataracts  were  not  the  work  of  Nature  by  the  fact  that 
they  were  very  nearly  equidistant  from  each  other  along 
the  course  of  the  river.  The  total  distance  from  the  first 
cataract  at  Assouan  to  Khartoum  is  seven  hundred  and 
twenty  miles,  and  the  division  of  this  space  by  six  cataracts 
will  give  one  hundred  and  twent}'  miles  between  each,  which 
is  almost  the  exact  distance  between  an}''  two  cataracts.  The 
fall  of  the  river  being  eight  inches  to  the  mile  would  give 
a  needed  height  to  each  dam  of  eighty  feet,  exactly,  in  short, 
the  calculation  which  would  now  be  made,  primarily,  by  any 
irrigation  engineer.  Last,  but  not  least,  the  great  square 
granite  blocks,  composed  of  a  formation  that  cannot  be  found 
in  any  other  parts  of  the  Nile  except  at  the  cataracts  or  rapids, 
stretching  out  for  over  two  thousand  yards  across  the  river 
are  still  visible  at  very  low  Nile.  From  these  facts  modern 
scientists  and  engineers  have  come  to  the  conclusion  that  the 
cataracts  or  rapids  were  not  the  work  of  Nature,  but  were 
enormous  dams  constructed  by  man,  for  the  purposes  above 
described.  But  the  proof  of  the  dams  having  existed  where 
the  cataracts  or  rapids  now  are  does  not  rest  simply  on  the 
inference  of  experts  upon  the  appearance  of  the  river.  Quite 
recently  there  have  been  found  ancient  writings  which  speak 
of  this  fact;  and  among  the  various  inscriptions  found  is  one 
found  at  Sikilis  to  the  effect  that  the  Nile  watered  vast 
regions  above  Semnah,  but  that  the  rock  gave  way,  and  that 
ever  after  the  river  ceased  to  water  the  region  above. 

§  11.   Same. — Art    in    Egypt    (/Oiitinuetl. — It   is   not   our 

intention  in  this  work  to  go  into  the  history  in  detail 
of  the  art  of  irrigation  in  all  the  ancient  countries  of 
the  world,  but  only  so  far  as  it  is  necessary  to  .show 
that  it  was  known  ages  before  the  Christian  era,  and 
was  practiced  in  those  hot  arid  countries  upon  a  colossal 
scale.  Our  record  of  the  history  of  irrigation  in  ancient 
Eg5^pt  would  not  be  complete  without  giving  a  sketch  of  that 


§  11.]  IRRIGATIOX    I'AST    AND    PRESENT.  15 

country  as  written  by  Plato,  a  Grecian  who  received  his 
information  from  the  writings  and  saj-ings  of  one  of  his 
ancestors,  Solon,  the  great  law  giver  of  Athens,  six  hundred 
5^ears  before  Christ.  According  to  ancient  history,  Solon 
visited  Egypt  and  spent  ten  years  there  studj'ing  the 
philosoph)-  and  early  history  of  that  country.  Here  Plato 
relates  that  he  learned  from  the  high  priest  of  Sais,  at  the 
delta  of  the  Nile,  the  history  and  description  of  Atlantis,  and 
became  convinced  that  the  Egyptians  constituted  one  of  the 
earliest  and  largest  colonies  which  had  gone  out  from  the 
land  of  the  Atlantidae.  Now  as  to  the  ancient  art  of 
irrigation,  let  us  quote  from  the  record  that  Plato  has  left  us: 
"  And  beginning  from  the  sea,  they  dug  a  canal  three  hundred 
feet  in  width  and  one  hundred  feet  in  depth,  and  fift}'  stadia 
in  length,  which  they  carried  through  the  outermost  zone, 
making  a  passage  from  the  sea  up  to  this,  which  became  a 
harbor,  and  leaving  an  opening  sufficient  to  enable  the 
largest  vessels  to  find  egress.  Moreover,  the)'  divided  the 
zones  of  land  which  parted  the  zones  of  sea,  constructing 
bridges  of  such  width  as  to  leave  a  passage  for  a  trireme  to 
pass  out  of  one  into  another,  and  roofed  over  them;  and  there 
was  a  way  underneath  for  the  ships,  for  the  banks  of  the 
zones  were  raised  considerably  above  the  water.  *  *  *  jj^ 
the  next  place  they  used  fountains  both  of  cold  and  hot 
springs.  *  *  *  They  constructed  buildings  about  them 
and  planted  suitable  trees;  also  cisterns,  some  open  to  heaven, 
others  roofed  over.  *  *  *  The  water  which  ran  off  they  carried 
some  to  the  grove  of  Poseidon,  where  were  growing  all 
manner  of  trees  of  wonderful  height  and  beauty,  owing  to  the 
excellence  of  the  soil;  tJie  remainder  was  conveyed  by 
aqueducts  which  passed  over  the  bridges  to  the  outer  circles. 
I  will  describe  the  plain,  which  has  been  cultivated  during 
many  ages,  by  many  generations  of  kings.  It  was  rectangular, 
and  for  the  most  part,  straight  and  oblong;  and  what  it  wanted 
of  the  straight  line  followed  the  line  ot  the  circular  ditch. 
The  depth  and  width  and  length  of  this  ditch  were  incredible, 
and  gave  the  impression  that  such  a  work  in  addition  to  so 
many  other  works,  could  hardly  have  been  wrought  by  the 
hand    of  man.      But  I  must  say  what  I  have  heard.       It    was 


16  IRRIGATION    PAST    AND    PRESENT.         [§  11,  12. 

excavated  to  the  depth  of  a  hundred  feet,  and  its  width  was  a 
stadium  everywhere;  it  was  carried  around  the  whole  of  the 
plain,  and  was  ten  thousand  stadia  in  length,  It  received  the 
streams  which  came  down  from  the  mountains,  and  winding 
round  plains,  touching  cities  at  various  points,  was  there  let 
off  into  the  sea.  From  above  likewise,  straight  canals  of  a 
hundred  feet  in  width  were  in  the  plain,  and  again  let  off  into 
the  ditch,  *toward  the  sea;  these  canals  were  at  intervals  of  an 
hundred  stadia,  and  by  them  brought  down  wood  from  the 
mountains  to  the  city,  and  conve5'ed  the  fruits  of  the  earth  in 
ships,  cutting  transverse  passage  from  one  canal  to  another, 
and  to  the  city.  Twice  in  the  year  they  gathered  the  fruits 
of  the  earth,  in  winter,  having  the  benefits  of  the  rains,  and 
in  summer  introducing  the  waters  of  the  canals."  From  the 
foregoing  it  can  be  readily  seen  that  irrigation  was  not  only 
known  and  practiced  at  a  very  early  date  by  the  Egyptians, 
but  also  was  at  least  known  by  the  Grecians;  that  the  ancient 
nations  constructed  underground  conduits  for  bringing  water 
from  the  heights  which  they  allowed  to  gush  forth  at  suitable 
points  for  irrigating  purposes  and  for  domestic  use;  that  they 
built  immense  dams,  canals,  reservoirs  and  aqueducts  for  the 
same  purpose;  and  that  whether  the  story  of  Plato  of  the  lost 
Atlantis  and  its  people  is  true  or  not  we  are  sure  that,  long 
prior  to  the  time  Plato  wrote,  these  stupendous  feats  had 
been  accomplished  and  were  not  then  considered  beyond  the 
possibility  of  human  skill  and  engineering. 

§12.  Other  Ancient  Countries  of  tlie  Old  World  Ac- 
quainted with  the  Art. — It  is  not  the  purpose  of  this  volume 
to  go  into  a  lengthy  discussion  of  the  ancient  history 
of  this  art,  but  we  will  briefly  mention  a  few  of  the 
nations  which  were  acquainted  with  the  workings  of  the 
application  of  water,  by  artificial  means,  for  the  purpose  of 
irrigating  lands.  To  Egypt,  as  has  been  seen,  is  attributed 
the  first  knowledge  and  practice  of  the  art  of  irrigation, 
and  it  is  claimed  by  some  authorities  that  it  was  the  annual 
overflow  of  the  river  Nile  which  gave  the  inspiration  and 
taught  its  value  to  that  people.  It  is  more  than  probable 
that  Egypt,  in  her  turn,  taught  irrigation  to  the  people  of 


§12,13]  IRRIGATION    PAST    AND    PRESENT.  17 

Assyria,  Babylonia,  Carthage,  to  the  Phoenicians  and  to 
the  inhabitants  of  Italy.  At  any  rate,  at  a  later  date 
we  find  records  of  these  nations  having  knowledge  of  and 
practicing  irrigation  very  extensively.  A  great  many  of  the 
ancient  writers  of  those  countries  speak  of  the  canals  and 
aqueducts.  Cato  and  Calumella,  amongst  the  Romans,  speak 
of  the  formation  and  management  of  watered  gardens.  The 
Lombard  Kings,  at  a  still  later  date,  undoubtedly  following 
the  Roman  practice,  encouraged  and  extended  the  system  in 
Italy.  From  Lombardy  it  was  introduced  into  France  ;  and  the 
Moors  encouraged  it  in  Spain,  Sicily  and  Algeria.  The 
early  history  of  Persia  and  China  also  shows  that  these 
nations  were  acquainted  with  irrigation  at  a  remote  time. 
In  India  it  was  also  practiced  in  very  early  days  and  con- 
tinues in  vogue  to  this  day ;  and  the  mighty  canals  and 
aqueducts  of  that  country  are  wonders  of  the  world,  so 
far  as  engineering  skill  and  construction  are  concerned.  In 
fact,  in  all  those  countries  where  irrigation  has  been  practiced 
we  find  it  still  in  operation,  though  perhaps  not  so  exten- 
sively, nor  upon  so  large  a  scale  as  it  was  by  the  ancients. 

§  13.  Fii-st  Traces  of  li  rigatioii  in  the  New  World.— 
The  Iiicas. — Respecting  irrigation  in  South  America,  the 
artificial  watering  of  the  earth  to  increase  its  fruitfulness  is 
of  origin  so  remote  that  its  history  is  quite  unknown.  At 
a  period  probably  ante-dating  the  Christian  era  the  inhabi- 
tants of  that  country  understood  a  scientific  system  of  using 
the  waters  of  natural  streams  and  lakes  for  the  purpose  of 
irrigating  their  crops.  But  the  art  was  lost  there  if  we  are 
to  judge  by  a  comparison  of  the  irrigation  works  of  to-day 
with  those  of  the  past  ages.  Philologists  and  archaeologists 
think  and  claim  that  no  conceivable  simple  case  of  deterio- 
ration of  a  race  could  have  taken  place  which  would  have 
efitcted  such  a  change  as  is  apparent.  They  think  the  an- 
cient people  of  the  country  became  extinct,  and  that  the 
present  inhabitants  are  in  no  sense  descendants  of  the  former 
occupants  of  the  land,  but  rather  that  they  represent  a  later 
migration  from  another  country.  The  study  of  the  works  of 
irrigation    would    confirm    tliis   theory.     It   is    impossible  to 


18  IRRIGATION    PAST    AND    PRESENT.         [§  13,  14, 

suppose  that  the  present  inhabitants  of  Peru  and  Bolivia, 
practicing  irrigation  as  they  do  to-day,  in  the  crudest  con- 
ceivable manner,  could  have  sprung  from  a  race  which  was  at 
one  time  master  of  the  art,  by  whom  aqueducts,  canals 
and  reservoirs  were  constructed  on  an  immense  scale,  and 
in  such  an  enduring  manner  that  they  have  defied  the 
changes  of  many  centuries.  When  or  by  whom  they  were 
built  cannot  be  definitely  ascertained,  but  there  is  ample  proof 
that  the  people  who  planned  and  maintained  them  were  in 
many  ways  highly  civilized.  Some  of  the  aqueducts  were  of 
great  length,  one  that  traversed  the  district  of  Condesuyos 
measured  nearly  five  hundred  miles.  The  water  was  brought 
from  a  lake  or  natural  reservoir  in  the  heart  of  the  mountains 
and  additional  supplies  were  obtained  at  intervals  from 
other  basins  that  lay  in  their  route.  Prescott  remarks: 
"Canals  and  aqueducts  were  seen  crossing  the  lowlands  in 
all  directions,  and  spreading  over  the  country  like  a  vast  net 
work,  diffusing  fertility  and  beauty  around  them."  Most  of 
these  works  of  the  Incas  have  been  allowed  by  their  Spanish 
conquerors  to  go  to  decay.  In  some  spots  the  waters  are 
still  left  to  flow  in  their  silent  channels,  whose  windings  and 
sources  have  been  alike  unexplored.  Others,  though  par- 
tially dilapidated  and  closed  with  rubbish  and  rank  vege- 
tation, still  betray  their  course  by  occasional  patches  of 
fertility.  Such  are  the  remains  in  thevalley  of  the  Narca, 
a  fruitful  spot  lying  between  long  tracts  of  desert,  where 
the  ancient  water-courses  of  the  Incas,  measuring  four  or  five 
inches  in  depth  by  three  feet  in  width,  and  formed  by  long 
blocks  of  granite,  uncemented,  are  conducted  from  an 
unknown  distance. 

§1-1:.  The  Nahiia  Nations. — While  on  the  subject  of  prehis- 
toric nations  I  will  refer  to  the  works  of  the  Nahua  Nations, 
especially  of  those  tribes  known  as  the  Aztecs  and  Toltecs, 
who  formerly  lived  in  Central  America,  Mexico,  New  Mexico 
and  Arizona.  We  are  told  in  history  that  when  Cortes  visited 
Mexico,  for  the  purpose  of  irrigating  the  fields  the  water 
of  the  rivers  and  mountain  streams  were  utilized  by  means  of 
canals,  dams  and  ditches,  and  that  the  net  work  of  canals 


§  14.J  IRRIGATION    PAST    AND    PRESENT.  19 

b}'  which  the  plantations  were  watered  offered  to  Cortes' 
army  very  serious  obstruction.^  Probably  the  greatest  souve- 
nir left  by  the  aboriginal  races  of  North  America  is  to  be 
found  in  the  maze  of  prehistoric  canals  found  in  the  Salt 
River  and  Gila  Valleys  of  Arizona.  The  age  of  these  canals 
is  entirely  unknown,  and  purely  a  matter  of  conjecture. 
That  they  were  constructed  b}'^  a  race  of  people  who  had 
attained  a  far  higher  degree  of  civilization  than  the  abori- 
gines who  inhabit  that  part  of  the  country  goes  with- 
out saj'ing.  There  is  but  one  tradition  among  the  present 
Indian  tribes  concerning  these  canals,  and  that  relates  to 
their  destruction.  When  Coronado,  in  1542,  was  seeking  the 
seven  cities  of  Cibola  he  found  several  tribes  of  aborigines 
in  what  is  now  Arizona,  supporting  themselves  wholly  or  in 
part  b}'  tilling  the  soil.  These  tribes  themselves  occupied 
but  a  limited  area,  but  wideh'  scattered  groups  of  ruins  prove 
that  in  early  centuries  the  principal  valley's  were  inhab- 
ited by  a  numerous  people  who  had  lived  chiefly  by  agricul- 
ture, and  to-daj^  in  many  districts  their  irrigating  canals  are 
still  to  be  seen.  Coronado  was  astonished  b}^  the  extent  and 
size  of  these  canals,  but  failed  to  learn  aught  of  their  age  or 
builders,  except  a  tradition  of  the  hasty  flight  of  that  pre- 
historic people  and  the  destruction  of  their  works. ^  Whether 
the  tradition  as  related  to  the  Spaniards  under  Coronado  and 
by  the  aborigines  themselves,  which  has  been  handed  down 
to  the  present  time,  is  true  as  to  the  actual  history  of  the 
canals,  or  whether  it  is  a  creation  of  a  later  day,  it  is  hard  to 
say.  But  often  times  what  is  considered  to  be  mythology  and 
tradition  in  one  age  is  proven  in  the  next  to  be  fact.  It 
is  certainly  true  that  the  tradition  of  the  natives  is  corrobo- 
rated to  a  great  extent  by  still  existing  evidences.  The  ruins 
of  these  canals  are  plainly  visible  in  the  Gila  and  Salt  River 
Valleys,  running  almost  to  the  Colorado  River,  and  every- 
where are  to  be  found  the  traces  of  ancient  civilization  of  a 

1  2  Bancroft's  Works,  349.  pressed  with  tlie  beauty,  order  and 

2  17  Bancroft's  Works,  549;  i  Ban-  disposition    of    the    arrangements 

croft's  Works,  539;  Garces  Diano,  for  irrigating."  Kniory  in  Fremont 

in  Doc.  Hist.  Mex. Series  2  Tom.  i  and   Kuiory's   Notes  of  Trav.   pp. 

pp.  235,  37.   "We  were  at  once  im-  47-8;   i  Irrigation  Age,  26. 


20  IRRIGATION    PAST    AND    PRESENT.  [§  14,  15. 

high  order,   evidences  of  hast}^  flight,  as  well  as  the  ravages 
of  fire,  the  salient  features  of  pillage. 

§15.  Nahua  Nations,  continued.— Arizoua. — In  Arizona  are 
to  be  found  remains  of  prehistoric  canals  which  with 
their  laterals  must  exceed  a  thousand  miles  in  length, 
and  the  ruins  of  many  of  them  give  evidence  of  the 
expenditure  of  vast  labor  in  their  construction.  One  of  the 
largest  of  these  canals  took  the  water  from  the  south  side  of 
Salt  River,  about  twenty-five  miles  from  the  present  city  of 
Phoenix,  and  after  leaving  the  river  ran  for  several  miles 
through  a  formation  of  hard  volcanic  rock.  Thus  without 
explosives  of  any  kind,  and  with  the  simple  tools  of  the  stone 
age,  the  aboriginal  constructors  of  the  ditch  excavated  a  canal 
through  solid  rock  of  the  hardest  formation  to  a  depth  vary- 
ing from  twenty  to  thirty  feet,  and  to  a  width  of  about  twenty 
feet,  and  having  a  capacity  of  from  ten  thousand  to  fifteen 
thousand  miner's  inches  when  the  river  was  at  its  ordinary 
stages.  The  evidence  of  the  vast  amount  of  labor  expended 
in  its  construction  by  the  chipping  process  is  plain 
upon  the  face  of  the  rock  itself,  while  for  miles  on  both 
sides  of  the  canal  can  be  found  vast  numbers  of  worn  out 
stone  axes  and  hammers.  A  party  of  Mormons  have  suc- 
ceeded in  clearing  away  the  accumulated  debris  and  restoring 
the  ditch  to  its  original  usefulness,  and  have  thereby  con- 
verted a  barren  waste  into  fertile  fields,  now  occupied  by 
twenty  thousand  people.  The  canal  is  at  present  known  as  the 
Mesa  Canal,  and  supplies  Mesa  City  and  vicinity  with  water  for 
irrigating  and  other  purposes.  Two  miles  east  of  the  above 
mentioned  canal,  but  on  the  other  side  of  the  river,  is  the  head 
of  the  great  Arizona  Canal,  the  largest  in  the  south-west  if  not 
on  the  Pacific  Coast,  carrying  as  it  does  nearly  fifty  thousand 
inches  of  water.  Its  construction  was  also  suggested  by  the 
remains  of  a  prehistoric  canal  that  could  be  traced  for  many 
miles,  and  the  promoter  of  the  new  enterprise,  in  the  firm  belief 
that  what  had  been  done  could  be  done  again  under  like  condi- 
tions, had  the  pleasure  of  seeing  completed  a  water  way  which 
reclaimed  over  one  hundred  thousand  acres  in  and  around  the 
citv  of  PhcEuix.     Forty  miles  west  of  the  Arizona  Canal,  and 


§  15,  10. 1         IRRIGATION    PAST   AND    PRESENT.  21 

a  few  miles  helow  the  junction  of  the  Salt  River  with  the 
Gila  on  the  North  bank  of  the  latter  river,  is  the  head 
of  another  ditch  which  from  the  traces  of  prehistoric 
civilization  fomid  along  its  banks  is  of  even  more  interest. 
It  is  called  the  "  Acequa  of  the  painted  rocks,"  and  com- 
mences where  it  can  take  from  the  Gila  not  only  the  waters 
of  that  stream,  but  also  the  water  of  all  the  canals  lying 
north  and  east  of  it  as  well.  Portions  of  the  canal  have 
been  reclaimed,  but  those  parts  which  the  hand  of  modern 
civilization  has  not  touched  are  still  so  distinct  that  their 
remains  may  be  traced  without  difficulty  for  fifty  miles,  while 
between  it  and  the  Gila  river,  in  the  lands  which  were 
formerly  irrigated  from  it,  can  be  found  the  relics  of  ancient 
civilization  in  profusion,  not  only  in  the  shape  of  ruined 
buildings,  but  also  of  pottery,  stone  implements  and  weapons, 
ornaments,  etc.  But  another  curious  feature  of  this  canal, 
and  the  strongest  evidence  of  the  great  length  of  time  which 
has  elapsed  since  the  system  of  irrigation  was  maintained,  is 
that  a  few  miles  below  the  point  where  it  crosses  the 
Hassayamba  creek  it  traverses  a  mesa  or  bench  for  several 
miles,  from  which  it  falls  abruptly  into  a  valley  some  forty  or 
fifty  feet  below.  Where  this  fall  takes  place  the  waters  of  the 
canal  have  cut  away  for  several  feet  the  walls  of  the  mesa, 
which  are  of  the  hardest  volcanic  character.  As  every 
evidence  indicates  that  the  erosion  of  the  rock  has  been 
accomplished  by  the  action  of  the  water  alone  centuries  must 
have  been  required  for  the  work.  Upon  the  face  of  the  rock 
thus  cut  away  are  to  be  found  hieroglyphics  of  every 
description,  of  the  meaning  of  which  the  present  "aborigines 
know  nothing.  From  these  inscriptions  the  white  man  has 
given  them  the  name  of  "  Painted  Rocks." 

^  1(>.  A  Court  Opinion  upon  the  History  of  the  Subject.— 

Mr.  Justice  Barnes,  in  rendering  the  decision  of  the  Supreme 
Court  of  Arizona,  in  the  case  of  Clough  vs.  Wing,  in  the  year 
i888,^  went  into  the  history  of  the  .subject,  and  in  the  course 
of  his  very  able  opinion,  said:   "The  right  to  appropriate  and 

1  17  Pac.  Rep.  455. 


22  IRRIGATION    PAST    AND    PRESENT.  [§  16. 

use  water  for  irrigation  has  been  recognized* longer  than 
history,  and  since  earlier  than  tradition.  Evidences  of  it  are 
to  be  found  all  over  Arizona  and  New  Mexico  in  the  ancient 
canals  of  a  prehistoric  people,  who  once  composed  a  dense  and 
highly  civilized  population.  These  canals  are  now  plainly 
marked,  and  some  modern  canals  follow  the  track  and  use  the 
work  of  this  forgotten  people.  The  native  tribes,  the  Pimas 
and  Papagoes  and  other  Pueblo  Indians,  now  as  they  for 
generations  have  done,  appropriate  and  use  the  waters  of  these 
streams,  in  husbandrj^  and  sacredly  recognize  the  rights 
acquired  by  law  and  use,  and  no  right  of  a  riparian  owner  is 
thought  of.  The  only  right  in  water  is  found  in  the  right  to 
conduct  the  same  through  their  canals  to  their  fields,  there  to 
use  the  same  in  irrigation.  The  same  was  found  to  prevail 
in  Mexico  among  the  Aztecs,  the  Toltecs,  the  Vaquis  and 
other  tribes  at  the  time  of  conquest,  and  remained  undisturbed 
in  the  jurisprudence  of  that  country  until  now.  It  existed  also 
in  Peru,  though  there  the  appropriation  was  by  the  state,  which 
constructed  and  maintained  the  canals  for  the  use  of  the 
tillers  of  the  soil.  The  Spanish  conquerors  brought  the  same 
idea  with  them  from  Spain  where  they  prevailed  then  as  now. 
Escriche,  tit  '  Agua,'  §§  III,  IV.,  and  '  Acequia.'  'The 
Lombard  kings  following  the  Roman  practice  encouraged  and 
extended  irrigation  in  Italy.  From  Lombardy  the  art 
extended  to  France  ;  while  the  Moors  encouraged  it  in  Spain, 
Sicily  and  Algeria.'  Ency.  Brit.,  9th  edition.  'Necessity 
required  it  in  the  districts  which  comprise  parts  of  the  south 
of  Spain,  Portugal  and  Italy,  including  Sicily  and  Greece.' 
Id.  'Ruins  of  ancient  irrigating  works  are  found  in  Spain.'  Id. 
In  Egypt  and  in  some  parts  of  Persia,  India  and  some  parts 
of  China,  this  form  of  husbandry  has  been  practiced  from  time 
immemorial  and  still  continues.  Under  the  civil  law  water 
was  publici  Juris  and  by  that  law  the  '  first  person  who 
chooses  to  appropriate  a  natural  stream  to  a  useful  purpose 
has  title  against  the  owner  of  the  land  below,  and  may 
deprive  him  of  the  benefit  of  the  natural  flow  of  the  water.' 
Per  Denman  in  Mason  vs.  Hill,  5  Barn.  &  Adol.  i.  Thus  we 
see  that  this  is  the  oldest  method  of  skilled  husbandry  and 
probably    a    large    number   of  the    human    race    have   ever 


§  16,  17.J        IRRIGATION    PAST    AND    PRESENT.  23 

depended  upon  artificial  irrigation  for  their  food  products. 
The  riparian  rights  of  the  common  law  could  not  exist  under 
such  system  ;  and  a  higher  antiquity,  a  better  reason,  and 
more  beneficent  results  have  flowed  from  the  doctrine  that  all 
right  in  water  in  non-navigable  streams  must  be  subservient 
to  its  use  in  tilling  the  soil." 

§  17.   The  Skill  with  which  Ancient  Canals  were  Con- 
structed.—The  instances  here   cited  of  the    use   of  natural 
streams  and  lakes  for  the  purpose  of  irrigation  by  the  ancients 
are  but  a  few  of  the  most  prominent  of  those  of  the  old  and 
new  world.     Many  of  these  ancient  canals  have  been  utilized 
for   modern   husbandry.     But  the  very  facility   with  which 
they  have  been  thus  utilized  have  been  the  means  of  obliterat- 
ing the  opportunities  of  tracing  back  their  history  and  that  of 
the  people  who  constructed  them.    Once  an  old  ditch  is  repaired 
or  restored  it  ceases  to  be  of  interest  from  an   antiquarian 
standpoint,  and  soon  even  its  prehistoric  origin  is  forgotten. 
The  question  often  arises,  how  great  was  the  skill  and  inge- 
nuity   these    prehistoric    nations    possessed    in    their   day  ? 
Never  has  the  skill  of  the  best  modern  engineers  been  able  to 
improve  on  the  lines  of  the  ruined  canals  which  they  left 
behind  them.    In  the  selection  of  locations  at  which  to  take 
the  water  from  the  rivers  the  prehistoric  race  have  always 
exhibited  the  greatest  skill  and  intelligence.     It  was  these 
ruins  left  in  Arizona  that  early  in    the  seventies  first  gave 
the  settlers  of  the  territory  the  idea  of  reclaiming  the  valleys 
where  now  are  towns  and  cities  surrounded  by  a  large  popu- 
lation of  agriculturists.     The  first  canals  simply  followed  the 
line  of  the  prehistoric  ones.     How  extensive  the  system  of 
irrigation  in  the  Salt  River  Valley  alone  was,  may  be  inferred 
from  the  fact  that  the  amount  of  land  practically  covered  by 
the  canals  was  over  a  quarter  of  a  million  of  acres.     The 
population  supported  must  have  been  very  great.     And  it  is 
estimated  that   from  the   amount  of  ground  probably   culti- 
vated, and  the  ruins  of  houses  and  remains  of  fragments  of 
pottery,  shell  ornaments  and  stone  implements  found  every- 
where over  the  lands,  the  population  supported  by  the  ditches 


24  IRRIGATION    PAST    AND    PRESENT.  [§  17,  18. 

would  not  fall  short  of  500,000  people — an  estimate  that  the 
best  authorities  consider  conservative. 

III.  Value  of  Irrigation  to  Modern  Civilization. 

§  18.  British  India. — The  art  of  irrigation  in  India  was 
practiced  for  many  centuries,  first  by  utilizing  small  streams, 
and  then  the  great  rivers.  As  population  increased  a  new 
system  for  the  storage  of  water  was  developed.  In  that  land 
a  rainy  season  prevails,  when  great  quantities  of  water  are 
precipitated,  but  during  the  season  of  growing  crops  the 
country  is  hot  and  dry.  Under  these  conditions  the  people 
learned  to  store  the  storm  waters  in  reservoirs  constructed 
by  erecting  dams-  across  gulches,  and  hundreds  of  thousands 
of  these  storm  tanks  were  ultimately  made.  Since  the  British 
have  held  control  of  India  irrigating  works  have  been  con- 
structed on  stupendous  plans.  The  hydraulic  engineering 
practiced  in  their  construction  vies  with  the  best  in  the 
world;  and  no  longer  is  irrigation  precarious,  for  the  streams 
and  storms  waters  are  controlled  by  the  highest  human  art. 
In  that  country,  according  to  the  recent  statistical  reports, 
$360,000,000  have  been  invested  for  that  purpose  and  more  than 
35,000,000  acres  of  land  have  been  reclaimed  during  the  last 
thirty  years.  The  problems  of  irrigation  in  that  country  com- 
mand the  broadest  imperial  statesmanship.  They  involve  the 
humane  government  of  a  dependent  and  conquered  population 
of  over  50,000,000  of  people.  The\'  involve  the  feeding  of  vast 
communities  heretofore  liable  to  the  horrors  of  famine.  They 
mean  the  reclamation  of  vast  tracts  of  land  otherwise  unoccu- 
pied, and  the  creation  of  a  vast  revenue  from  land  rent  to  the 
government,  which  is  practically  the  sole  landlord  in  that 
great  empire.  Let  us  examine  some  of  the  canals  of  this 
period.  The  greatest  of  all  these  works  is  the  Ganges  canal. 
This  cost  15,000,000  dollars  and  controls  10,000,000  acres, 
of  which  it  irrigates  1,000,000  acres,  and  has  456  miles 
of  main  canals,  2,599  i^iles  of  distributaries,  895  miles  of 
escapes  and  drainage  cuts,  and  its  total  mileage  is  3,910. 
Each  distributary  would  be  a  large  canal  in  America,  and  has 
numerous  masonry  bridges,  regulators  and  aqueducts  along  its 


§  18.]  IRRIGATION    PAST    AND    PRESENT.  25 

line.  Another  great  system  is  that  of  the  Sirhind  Canal  in 
Punjab.  The  diversion  works  consist  of  the  usual  weir 
with  under  sluices  in  it,  and  regulators  at  the  canal  head.  In 
the  first  few  miles  the  fall  is  great  and  there  are  a  number  of 
drainage  works,  of  which  the  Siswan  superpassage  carries 
20,000  second-feet,  and  the  Budki  superpassage  30,000 
second-feet  of  water.  The  main  canal  and  principal  branches 
are  in  all  4,950  miles  in  length,  of  which  503  miles  are  main 
navigable  canals.  Its  discharge  is  estimated  at  7,000  second- 
feet,  though  it  generally  carries  only  from  3,700  to  4,000 
second-feet.  The  gross  area  commanded  by  the  canal  is 
4,520,000  acres,  of  which  800,000  acres  are  irrigable.  The 
above  examples  are  sufficient  to  show  to  what  an  enormous 
extent  irrigation  is  carried  in  that  countr3\  A  great  many 
of  the  canals  are  built  so  large  that  the}^  not  onh'  serve  for  the 
purpose  of  irrigation,  but  also  of  navigation.  The  total  length 
of  canals  and  distributary  channels  included  in  the  major 
works  amounts  to  27,532  miles,  and  of  these  2,840  miles  are 
navigable.  But  the  navigation  is  only  of  secondary  importance 
to  irrigation.  The  irrigation  works  are  constructed  and 
maintained  by  the  officers  of  the  Irrigation  Branch  of  the  Pub- 
lic Works  Department.  According  to  official  reports  there 
were  in  1890  under  cultivation  in  India  by  means  of  irrigation 
about  35,000,000  acres,  and  it  is  estimated  that  80,000,000 
acres  in  addition  can  be  reclaimed.  Thus  in  a  thickly  popula- 
ted country,  scorched  by  a  tropical  sun,  the  famine  daj-s  of  the 
past  are  fading  away  before  the  productive  fields. 

A  writer  in  giving  the  history  of  irrigation  in  Bombay, 
concludes  with  the  following:  "  A  husbandman  who  irrigates 
needs  to  be  upon  his  plot  early  and  late.  He  must  work  in  it  at 
night  time  in  some  seasons.  In  point  of  fact  he  must  live  upon 
it.  By  these  necessities  communities  have  been  dispersed  over 
their  fields,  to  enjoy  more  freedom,  more  light,  and  fresh  air 
as  well  as  water,  a  better  housed  people  have  been  better  occu- 
pied, better  fed,  and  better  clothed,  rendered  more  contented, 
and  in  other  ways  more  civilized:  the  whole  of  their  life  has 
been  lifted  a  little  by  raising  its  material  base.  This  has  been 
accomplished    under    the   very    eyes   of  all  ()l)servers,  in  the 


2 J  IRRIGATION    PAST    AXD    PRESENT.        [§   18,   19. 

present   generation,  bj-  means  of  irrigation   in   the  Maratha 
countr}-."^ 

§  19.  Africa. — Irrigation  in  modern  Egypt  involves  the 
security  of  the  Mediterranean  and  the  safety  of  the  Snez  Canal. 
Although  in  that  country  it  is  not  practiced  in  modern 
times  to  anything  like  the  extent  to  which  it  was  carried  by 
the  ancients,  yet  in  many  parts  it  is  kept  up  on  quite  a  large 
scale.  And  by  this  means  the  whole  evil  of  a  nomad  and 
uncivilized  population  is  being  now  checked  and  will  eventu- 
ally be  rooted  out.  The  population  of  the  Soudan  is  not  more 
addicted  to  wandering  or  war  than  any  otherof  their  cogeners 
in  Africa,  but  in  that  hot,  dry  climate  they  are  under  the  fatal 
necessity  of  moving  in  search  of  food,  water,  pasture  and 
shade.  When  these  are  permanently  obtainable  they  settle 
down  into  civilized  pursuits  of  life,  own  property,  pay  taxes, 
choose  rulers  and  buy  from  manufacturers.  The  ever  advanc- 
ing boundary  of  irrigation  has  always  been  found  in  that 
country  to  be  the  boundary  of  civilization  and  comfort.  The 
formerly  ever  present  famine  of  that  region  is  passing  away 
and  the  people  are  gradually  becoming  more  and  more  con- 
tented, and  in  a  few  years  extensive  armies  will  no  longer  be 
required  to  keep  them  in  order. 

Even  in  that  part  of  Africa  which  was  at  one  time  con- 
sidered the  most  dangerous,  desolate  waste  upon  the  face  of 
the  globe — the  great  Sahara  Desert — this  art  of  irrigation 
within  the  last  few  years  has  brought  about  changes  which 
fifty  years  ago  would  have  been  regarded  as  absolutely 
impossible.  This  desert  is  far  from  flowing  streams,  and  the 
water  is  obtained  by  boring  artesian  wells.  For  the  purpose 
of  this  work  we  will  select  but  one  section  of  that  country, 
which  is  the  most  remarkable  example  of  reclamation  by 
means  of  artesian  well  w^ater  that  can  be  found  in  the  world, 
but  which  is  found  in  the  Desert  itself,  in  the  provinces  or 
departments  of  Algeria,  under  French  rule.  The  area  offici- 
ally given  of  French  Algeria  is  184,465  square  miles.  The 
outlaying  portion  is  put  at   135,000  square  miles.      In  this 

1  3  Irrigation  Age  178. 


§19,20.]         IRRIGATION    PAST    AND    PRESENT.  27 

total  of  over  359,415  square  miles,  one  half  belongs  to  the 
Sahara  or  desert  portion.  The  European  population  in  1887 
was  about  250,000;  the  natives  and  naturalized  were  3,228,- 
549,  making  a  total  of  3,578,549.  Cultivation  b}'  means  of 
flowing  well  waters  has  been  sedulously  fostered  by  the  French 
colonial  government,  for  both  political  and  economic  reasons. 
Such  wells,  as  a  means  of  reclamation,  began  s^'stematically 
to  be  bored  in  1857,  the  French  engineer,  M.  Jus,  having 
demonstrated  in  1856  that  the  Desert  was  endowed  with 
large  supplies  of  under-ground  water.  The  total  number 
of  wells  bored  since  that  date  in  the  departments  of  Algiers, 
Oran  and  Constantine  is  stated  at  13,135.  These  wells 
range  from  seventy-five  to  four  hundred  feet  in  depth,  and 
the  low  pressure  common  to  the  majority  of  them  forces 
the  water  over  the  small  board  casings  to  a  height  of  about 
two  feet  above  the  ground.  The  waters  are  then  collected  in 
small  ditches  which  convey  them  to  the  vineyards,  date  trees 
and  fields  of  millet,  wheat  and  other  grain  which  comprise  the 
chief  products  of  that  country.  In  all,  about  twelve  million 
acres  have  been  reclaimed  in  this  way.  The  government 
bores  at  least  one  tenth  of  the  whole  number.  As  an  illus- 
tration of  the  reclamation  brought  about  by  this  method  of 
irrigation  by  artesian  wells,  the  following  figures  from  a 
report  in  1885  will  be  of  value,  but  they  relate  solely  to  the 
cultivation  of  the  grape  for  wine-making  purposes:  In  the 
Province  of  Algeria  there  are  60,382  acres  ;  in  Constantine 
25,021  acres;  in  Oran  26,114  acres.  Thus  when  we  see 
what  irrigation  has  done  in  Africa,  notwithstanding  its  burn- 
ing winds  and  scorching  sun,  its  possibilities  seem  to  be 
almost  limitless. 

§20.  Irrijjjalion  in  oilier  (  omit ries.— Irrigation  in  Italy, 
with  its  densely  populated  communities,  means  the  pros- 
perity of  the  Italian  Kingdom.  The  great  plains  and  val- 
leys of  the  Po  and  other  rivers  of  that  country  are  almost 
entirely  subjected  to  a  systematic  irrigation,  which  prodig- 
iously increases  their  fertility.  The  extent  of  irrigated  lands 
in  the  valley  of  the  Po  is  estimated  at  over  five  million 
acres.     Piedmont,  Lombardy  and  Venitia  are  networks  of  irri- 


28  IRRIGATION    PAST    AND    PRESENT.         [§  20,  21. 

gating  canals,  crossing  over  and  under  each  other,  threading 
their  way  in  all  directions,  bringing  water  to  almost  every  field. 

In  France  and  Spain  irrigation  is  an  insurance  on  an 
ancient  agriculture  and  the  prosperity  of  great  agronomic 
interests.  It  is  as  much  an  important  feature  to  agriculture 
in  those  countries  to-day  as  it  was  in  the  time  of  the  ancient 
Romans,  many  of  whose  works  still  exist,  and  some  of  which 
are  still  in  use. 

In  British  Australia  the  irrigation  interests  were  only 
actively  begun  in  r88i,  but  they  have  already  become  a  very 
important  feature  of  agriculture  in  that  country.  Several 
large  canals  have  recently  been  completed,  and  now  something 
over  ten  million  acres  are  under  cultivation,  which,  without 
irrigation,  owing  to  the  hot  dry  climate,  would  have  remained 
in  its  barren  state.  The  works  are  constructed  both  by  the 
government  and  by  private  enterprise. 

Enough  has  been  said  to  show  that  in  a  hot,  dry  country 
like  Africa,  and  in  as  thickly  populated  countries  as  Egypt 
and  India,  the  art  of  irrigation  is  a  matter  of  great  national 
importance  to  ward  off  famine,  which  would  surely  follow  its 
abandonment.  The  waters  of  the  rivers,  which  would  natur- 
ally waste  themselves  in  the  sea,  are  diverted  from  their 
courses  and  conducted  over  the  land  to  aid  in  saving  starving 
humanity. 

§21.  Irrigation  in  the  United  States— The  Arid  Rei^ion.— 

So  far  as  the  practice  of  irrigation  is  concerned  in  the  United 
States,  no  such  serious  questions  as  those  last  mentioned  have 
ever  entered  into  the  American  consideration  of  the  subject. 
All  the  people  of  this  country  could  exist,  and  live  in  a 
prosperous  condition  if  the  art  was  not  practiced  at  all  in  the 
United  States.  The  question  of  warding  off  famine  has  never 
yet  been  considered  as  a  national  issue.  The  part  of  this 
country  included  within  what  is  commonly  called  the  rain 
belt  is  large  enough  and  productive  enough  to  support  our 
present  population  and  more  besides.  So,  from  this  fact  it 
follows  that  up  to  the  present  time,  irrigation  has  never 
in  this  country  taken  a  part  in  the  life  and  death  struggle 
for   existence,    as    it   has    in    the    more    densely    populated 


§  21,  22.]  IRRKJATIOX    PAST    AND    PRESENT.  29 

countries  of  the  old  world.  But  as  the  country  becomes 
more  thickly  populated,  it  remains  for  future  generations  to 
see  what  part  irrigation  will  take  in  the  struggle  of  humanity. 
So  far  its  employment  in  the  United  States  has  been  more 
from  a  .speculative  standpoint  than  from  a  great  national 
necessity.  To  be  sure  it  is  practiced  to  make  barren  lands 
bring  forth  crops  ;  and  also  to  make  other  lands  more  pro- 
ductive, but  the  persons  who  cultivate  these  lands  might 
have  selected  others  within  the  rain  belt  of  the  country  or 
have  followed  .some  other  occupation.  And  so  there  has  never 
arisen  in  this  country  any  question  as  to  whether  the  people  of 
the  United  States  can  exist  upon  the  products  of  their  own  soil 
without  the  aid  of  irrigation.  Is  it  an  absolute  necessity  to 
this  nation  ?  Almost  silently,  without  the  knowledge  of  the 
other  fifty-six  millions,  a  population  of  seven  millions  have 
gone  upon  that  portion  of  the  United  States  lying  outside  of 
what  is  known  as  the  rain  belt,  west  of  the  looth  meridian, 
and  into  what  is  known  as  the  great  Arid  Region.  In  that 
part  of  the  country  the  artificial  application  of  water  to  the 
soil  for  irrigation  is  in  a  greater  or  less  degree,  according  to 
the  locality,  a  necessity  for  agriculture  or  horticulture.  Thus, 
the  "Irrigation  Empire"  has  grown  up  before  us,  without  its 
magnitude  and  its  vast  possibilities  oeing  known  until  within 
the  last  five  years.  Although  many  of  the  rivers  of  the  Arid 
Region  of  the  United  States  are  large,  and  rise  to  a  height 
sufiScient  to  insure  a  grand  system  of  irrigation,  no  great 
national  movement  towards  that  end  has  ever  been  attempted 
by  this  government,  such  as  the  Indian  government  has 
carried  into  eiFect.  Take  for  instance  the  Ganges  canal  with 
a  total  length  of  3,910  miles,  and  the  Sirhind  with  a  total 
length  of  4,950  miles,  built  by  the  government  of  India  out 
of  the  very  necessities  of  the  case.  What  may  not  our  govern- 
ment also  do,  when  necessity  urges  it  to  action  in  this  line  ? 

§  2'-i.   The  Stall's    iiicludiMl   within   the   Ariil   llei^ion.— 

The  Arid  Region  of  the  United  States  covers  an  area  of 
fifteen  hundred  miles  from  East  to  West,  and  one  thousand 
miles  from  North  to  Soutli.  It  lies  between  the  looth 
meridian  and  the  coast   ran.^c,  and  extends  from  the   British 


30  IRRIGATION    PAST    AND    PRESENT.        [§  22,  23. 

possessions  to  Mexico.       It  has  one  million  square  miles  or 
six  hundred  million  acres,  upon  which  nothing  can  be  grown 
without  irrigation.     Its  area  comprises  one-third  of  the  entire 
United  States.    All  of  Arizona,  New  Mexico,  Utah,  Wyoming, 
Idaho,   Colorado    and    Nevada,  and   portions   of  North   and 
South  Dakota,  Nebraska,  Kansas,  Texas,  Montana,  California, 
Oregon  and  Washington  lie  within  this  region.      The   Secre- 
tary  of  the    Interior,   Hon.  John  W.    Noble,    in   his   report 
for  the  year  1891,  estimates  that  120,000,000  acres  now  desert 
may  be  redeemed  by  the  various  methods  of  irrigation.     The 
states  above  named  have  now  a  population  of  between  eight  and 
nine  millions  of  inhabitants,  which  can  be  increased  many  fold; 
and  it  is  estimated  that  these  new  arid  lands  will  in  the  course 
of  a  century  sustain  inhabitants  to  the  number  of  nearly  the 
whole  of  the  present  population  of  the  United  States .    The  pro- 
duction of  this  vast  region  in  cereals  will  be  practically  unlim- 
ited under  a  system  of  irrigation  to  which  this  entire  region  with 
its  numerous  streams, steepacclivities,deepsnows, natural  drain- 
age, and  great  extent  of  rich  valley  lands  is  naturally  adapted. 

§  23.    The  First  of   Modern  Irrij^atiou  in  the   United 

StJltes.— Irrigation  has  been  practiced  in  the  State  of  Califor- 
nia ever  since  the  establishment  of  the  missions  by  the  Padres, 
nearly  a  century  ago.  The  mission  at  San  Diego  was  estab- 
lished in  1769,  and  one  of  the  first  things  done  was  to  construct 
a  canal  or  acequia,  for  the  purpose  of  conveying  water  to  the 
growing  crops  and  the  orchards  and  vineyards  that  were 
planted  from  seeds  and  cuttings  brought  from  Mexico.  To  this 
day  about  many  of  the  old  missions  may  be  seen  the  ruins 
of  the  systems  of  reservoirs  and  acequias  which  were  built 
by  the  Indians  under  the  instructions  of  the  Catholic  mission- 
aries, who  had  learned  the  value  of  irrigation  in  Mexico,  as 
well  as  the  best  manner  in  which  to  divert  the  waters  from  the 
natural  streams  and  convey  it  to  the  point  where  it  was  to  be 
used.  There  is  no  question  but  that  modern  irrigation,  as 
known  in  the  arid  region  of  the  United  States  by  white  Eng- 
lish speaking  people,  was  begun  by  the  Mormon  pioneers  in 
Utah,  in  1847.  They,  by  force  of  circumstances,  had  been  led 
to  make  their  homes  in  the  very  midst  of  the  great  arid  west. 


§  23.]  IRRIGATION    PAST   AND    PRESENT.  31 

The  President  of  that  people,  Wilford  Woodruff,  in  his  speech 
before  the  Irrigation  Congress  which  met  in  Salt  Lake  City 
on  the  15th  to  17th  of  September,  1S91,  related  the  circum- 
stances of  the  practice  of  the  art  which  has  reclaimed  so  many 
thousands  of  acres  of  barren  lands  in  the  west,  and  is  destined 
to  play  such  an  important  part  in  the  future  of  this  country. 
He  stated  the  circumstances  of  this  beginning  as  follows: 
"Fifty-one  years  ago,  the  twenty-fourth  of  last  July,  I  entered 
this  valley  with  one  hundred  and  forty-three  emigrants,  or  in 
other  words,  pioneers.  We  were  led  by  President  Young. 
This  country  that  we  arrived  upon  was  called  the  great 
American  Desert,  and  certainly,  as  far  as  we  could  see,  it  did 
not  deviate  from  that  in  the  least.  We  found  a  barren  desert 
here.  There  was  no  mark  of  the  Anglo-Saxon  race,  no  mark 
of  the  white  man— everything  was  barren,  dry  and  desert. 
We  pitched  our  camp  a  little  to  the  southeast  from  here,  about 
eleven  o'clock  in  the  day.  We  had  a  desire  to  try  the  soil,  to 
know  what  it  could  produce.  Of  course  all  this  company^ 
nearly  the  whole  of  us — were  born  and  raised  in  the  New  Eng- 
land States,  Vermont,  Maine,  Massachusetts,  Connecticut,  and 
had  no  experience  in  irrigation.  We  pitched  our  camp,  put 
some  teams  on  to  our  plows  and  undertook  to  plow  the  earth, 
but  we  found  that  neither  wood  nor  iron  was  strong  enough  to 
make  furrows  in  this  soil.  It  was  like  adamant;  of  course  we 
had  to  turn  water  on  it.  We  would  have  done  anything. 
We  went  and  turned  out  City  Creek;  we  turned  it  over  our 
ground.  When  we  came  to  put  our  teams  upon  it,  of  course 
they  sank  down  in  the  mud.  We  had  to  wait  until  this  land 
dried  enough  to  hold  our  teams  up.  We  put  in  our  crops  and 
staid  here  In  the  meantime  President  Young  laid  out  this 
city,  as  you  see  it  to-day,  in  tlie  midst  of  sage  brush,  with- 
out a  house  within  hundreds  of  miles  of  us.  Now,  what  I 
wish  to  say  is  this:  You  gentlemen  come  here  to-day,  you  see 
the  city,  you  go  through  the  country.  Here  are  thousands  of 
miles,  I  might  say,  through  these  mountains  filled  with  cities, 
towns,  villages,  gardens  and  orchards,  and  the  produce  of  the 
earth  that  sustains  the  people.  Without  this  water,  this  irri- 
gation for  which  you  have  met  here  to-day,  this  country  would 
be  as  barren  as  it  was   in   1847,   as  we  found  it.     Whoever 


32 


IRRIGATION    PAST    AND    PRESENT.  [§  23,  24. 


occupies  these  lands,  lias  got  to  have  the  water  to  perform  the 
work.  We  have  had  to  learn  by  experience,  and  all  that  we 
have  obtained  in  these  mountains  has  been  by  irrigation." 

§  24.  Same.— The  Mormons. — Thus,  on  the  24th  day  of 
July,  1847  this  art  of  irrigation  was  first  introduced  by 
English  speaking  people  in  the  arid  region  of  the  United 
States.  From  that  time  on  the  Mormons  realized  that  they  could 
succeed  only  by  building  ditches  and  diverting  the  streams  of 
water  from  their  natural  channels  upon  their  arid  lands.  As 
time  progressed  their  work  became  more  and  more  systema- 
tized, and  better  methods  were  obtained.  Their  policy  caused 
them  to  spread  out  and  colonize,  and  for  more  than  thirty 
years  their  settlements  have  extended  for  hundreds  of  miles 
from  the  central  point  at  Salt  Lake  City.  The  showing  in 
the  recent  United  States  Census  Bulletin,  prepared  by  Mr.  F. 
H.  Newell,  Special  Agent  of  the  Census  Bureau  for  the  collec- 
tion of  statistics  upon  the  subject  of  irrigation,  gives  a  fair 
conception  of  what  the  Mormons  have  accomplished  within 
Utah,  and  the  following  table  is  taken  from  his  report: 


Beaver  

Boxelder  .  .  . 

Cache 

Davis 

Emery    .... 

Garfield 

Grand 

Iron 

Juab 

Kane 

Millard 

Morgan.:.  . . 

Piute 

Rich 

Salt  Lake . . . 
San  Juan. .  . 

Sanpete 

Sevier 

Summit 

Tooele 

Uinta 

Utah 

Wasatch.. . . 
Washington 
Weber 

Total 


Number  of  irri- 
gators. 


Total  irrigated 

acreage  in 

crop. 


359 
908 

585 

264 
82 
56 

193 
«5 

107 

304 
233 
143 
184 

1,264 
38 

1. 155 
311 
276 
267 
186 

1,161 

259 
176 
928 


9.724 


7,682 
10,472 

30,923 
12,866 

7.344 
2,234 
1,139 
3.539 
1,946 

1,798 
8,199 
5,298 

5,299 
17,266 

25.392 

777 

30,938 

11,547 

10,140 

5.766 

7,611 

25,236 

6,475 

2,251 

21,335 


263,473 


Average  size  of 

irrigated  farms 

in  acres. 


38 
29 
34 
22 
28 
27 
20 
18 
23 
17 
27 
23 
37 
94 
20 
20 
27 
37 
37 
22 

41 
22 

25 
13 
23 


27 


§  24,  25.]         IRRIGATION    PAST    AND    PRESENT.  33 

It  will  be  noticed  that  the  average  size  of  irrigated  farms  is 
very  small.  In  fact  it  is  the  smallest  of  any  state  or  terri- 
torj^  of  the  arid  region.  This  shows  that  irrigation  in  this 
territory-  has  been  systematized  and  a  high  grade  of  cultiva- 
tion attained. 

§25.  Same. — Continued. — It  was  not  until  1870  and  1871 
that  the  first  co-operative  and  associative  eflforts  in  the 
direction  of  irrigation  outside  of  Utah  were  accomplished, 
although  it  had  been  carried  on  upon  a  small  scale  in 
sections  of  every  western  state  and  territorj-  prior  to  those 
dates.  These  were  successfully  initiated  at  Greely,  Colo- 
rado, and  at  Fresno,  California.  In  the  early  part  of  the 
year  1875  Congress  ordered  the  first  investigation  to  be 
made,  which  involved  the  examination  of  the  San  Joaquin 
Valley  and  its  capacity  for  reclamation  and  irrigation  purposes. 
About  the  same  time  Riverside,  the  first  citrus  growing 
community,  was  established  in  southern  California.  For 
ten  years  following  1875  no  notice  was  taken  of  the  irri- 
gation growth  by  Congress  or  by  the  country'  at  large,  and 
very  little  by  the  states  interested.  In  1885  the  Department 
of  Agriculture  employed  Richard  J.  Hinton  to  prepare  a 
report  on  irrigation  in  the  United  States,  and  having  made  a 
careful  investigation  of  the  subject  Mr.  Hinton  in  1886 
reported  that  the  area  of  land  reclaimed  by  irrigation  and 
under  ditch  at  that  time  was  about  5,500,000,  and  a  large 
proportion  of  that  "under  ditch"  was  only  used  to  water 
natural  grass  for  forage  and  cattle  feeding. 

In  1888  Congress  enacted  the  first  irrigation  legislation, 
providing  for  what  is  known  as  the  "  Irrigation  Survey," 
under  the  direction  of  the  United  States  Geological  Survey. 
It  also  ordered  through  the  Senate  an  inquiry  by  a  special 
committee  into  the  condition  of  the  arid  lands  and  their 
possible  reclamation  by  irrigation.  A  change  in  policy 
occurred  in  1889,  by  means  of  which  appropriations  were 
withheld  from  the  irrigation  survey  so  called,  and  a  small 
appropriation  of  $20,000  was  made  for  an  investigation  into  the 
artesian  and  under-flow  waters  of  the  great  plains  region  east 
of  the  foot  hills  and   west  of  the  97th  meridian.       From  the 


34 


IRRIGATION    PAST    AND    PRESENT.         [§  25,  26. 


time  of  the  report  of  Mr.  Hinton  in  i886  to  the  present  year, 
irrigation  projects  in  the  arid  west,  without  any  direct  con- 
gressional movement  in  that  direction,  but  by  state  and 
private  enterprise,  have  advanced  with  amazing  rapidity,  and 
during  this  period  another  important  method  has  been  added 
whereby  the  supply  of  water  has  been  increased.  I  refer  to  the 
artesian  wells,  which  subject  will  be  discussed  in  a  later  section. 

§  26.  Census  Irrigated  Land  in  1889 — Talue  of  Water. — 

According  to  the  extra  Census  Bulletin  No.  23,  issued  Sep- 
tember 9th,  1892,  the  following  table  gives  the  number  of 
irrigators,  actual  area  irrigated  and  the  average  size  of  irrigated 
farms  in  the  arid  region  in  i88g: 


states  and  Territories . 


Arizona 

California 

Colorado 

Idaho 

Montana 

Nevada 

New  Mexico 

Oregon 

Utah 

Washington 

Wyoming 

Sub-humid  Region 

Total , 


Number  of 

irrigators  in 

1889. 


1,075 
13,732 
9>659 
4,323 
3,706 
1,167 
3,085 
3,150 
9,724 
1,046 

1,917 
1,552 


Area  irrigated 
in  ISSy, 
in  acres. 


Average  size  of 
irrigated  farms 
in  acres,  in  1889 


54,136 


65,821 
1,004,233 

890,735 
217,005 
350, 5«2 

224,403 

91,745 

177,944 

263,473 

48,799 

229,676 

66,965 


3,631,381 


61 

73 
92 

50 

95 

192 

30 
56 
27 
47 
119 

43 


67 


Also  the  same  in  what  is  known  as  the  Sub-humid  Region, 
between  the  97°  and  the  100°  longitude. 


states. 

Number  of         Area  irrigated      Average  size  of 

irrigators  in               in  1889,            irrigated  farms 

1889.                     in  acres.           in  acres,  in  1889 

North  Dakota 

i 
7         1             445                      64 
189         1        15,717         i             S3 
214         ,        11,744         ;             55 
519                 20,818         '             40 
623                 18,241                      29 

South  Dakota 

Kansas 

Texas 

Total 

1,552            66,965      j         43 

§  26,  27,  28.J  IRRK4ATI0N    PAST    AND    PRESENT.  35 

The  preceding  tables  were  made  up  from  statistics  gathered 
and  prepared  bj-  Mr.  F.  H.  Newell,  special  agent  of  the 
Census  Office  for  the  collection  of  statistics  of  irrigation,  under 
the  direction  of  Mr.  John  Hyde,  special  agent  in  charge  of 
statistics  of  all  branches  of  agriculture.  And  it  must  be  borne 
in  mind  that  owing  to  the  tendenc)^  to  describe  as  irrigated 
all  land  to  which  water  has  been  applied  within  an}'  recent 
period  bj-  artificial  means,  or  which  is  merely  under  ditch, 
and  even  land  for  which  water  rights  are  claimed  but  upon 
which  perhaps  no  water  had  at  that  time  been  actually 
applied,  the  Census  Office  absolutely  restricted  itself  in  its 
official  bulletins  to  land  on  which  crops  were  actually  raised 
by  the  artificial  application  of  water  during  the  year  i88g. 
That  the  above  is  a  very  conservative  estimate  there  can  be 
no  question,  onl}-  the  irrigated  acreage  in  crop  being  included, 
and  not  acreage  irrigated  from  which  crops  were  not  obtained 
in  1889. 

§27.  Estimate  of  tlie  Department  of  Agriculture  iu  1891. 

The  area  under  ditch  for  1891  was  estimated  in  the  report 
of  the  office  of  irrigation  inquiry  at  18,533,107  acres.  The 
area  under  actual  cultivation  for  the  same  year  at  8,049,000 
acres.  A  farther  estimate  was  made  of  the  area  to  be  covered 
by  works  projected,  then  partiall}^  constructed,  at  a  total  of 
about  6,000,000  additional  acres.  The  figures  given,  though 
necessarily  estimates,  are  well  within  the  facts.  The  statistics 
were  gathered  b)'  means  of  circulars,  correspondence  and 
personal  inquiry,  and  may  be  depended  upon  as  reliable.  It 
shows  an  enormous  growth  of  the  practice  of  irrigation  in  the 
western  country.  Of  course  this  last  estimate  is  not  confined 
to  the  lands  alone  upon  which  a  crop  was  raised  in  the  year 
1891,  but  to  all  lands  that  were  then,  or  liad  been,  under 
cultivation  b}'  means  of  the  artificial  application  of  water,  by 
the  diversion  of  the  natural  streams,  or  by  artesian  wells. 

The  canals  were  constructed  and  the  water  was  diverted 
from  the  natural  streams  entirely  by  private  enterprise,  no 
government  or  state  aid  having  been  given. 

§  28.  The  Water  Supply. — The  acreage  at  present  under 
irrigation    may    be  regarded   as    approaching  the   maximum 


36  IRRIGATION    PAST    AND    PRESENT,  [§  28. 

possible  limit  with  the  present  supply  of  water  and  the 
method  of  utilizing  it.  As  a  general  statement  it  may 
be  said  that  throughout  the  arid  region  there  is  hardly 
a  stream  of  small  size,  from  which  water  can  be  conducted 
readily  upon  arable  land,  that  is  not  utilized  to  its  full 
capacity  during  the  summer  season.  To  be  sure,  in  a  great 
many  parts  irrigation  is  still  in  the  first  steps  of  devel- 
opment, not  having  advanced  beyond  the  simple  and  wasteful 
method  of  flooding  the  ground.  The  irrigators  do  not  take 
into  consideration  the  fact  that  by  this  means  not  only  is  a 
great  portion  of  the  water  wasted,  but  the  results  obtained 
are  often  of  less  value  than  would  have  been  the  case  if  better 
methods  were  adopted.  For  by  the  use  of  too  great  an  amount 
of  water  some  of  the  most  valuable  species  of  grasses  and 
other  vegetation  are  drowned  out,  coarse  swamp  grasses  and 
weeds  taking  their  places.  Thus  the  employment  of  too  much 
water  by  one  man  not  only  diminishes  the  supply  for  other 
persons  desiring  its  use,  but  also  injures  the  property  of  the 
user.  Be  this  as  it  may, the  fact  remains  that  the  w^ater  supply 
for  the  area  of  land  to  be  irrigated  is  each  year  becoming 
smaller  and  smaller  all  over  the  arid  region,  and  taking  the 
country  as  a  whole  there  are  very  few  localities,  if  any,  where 
as  in  the  past  a  farmer  can  divert  water  unclaimed  by  others, 
and  b}'  means  of  a  simple  ditch  constructed  by  his  own  labor 
and  that  of  his  neighbors  bring  his  farm  under  a  system  of 
irrigation.  It  is,  under  this  state  of  circumstances,  becoming 
a  very  serious  question  as  to  where  the  additional  supply  of 
water  to  meet  future  requirements  is  to  come  from.  In 
1888  and  1889  there  was  a  deficiency  of  the  water  supply  for 
the  land  then  under  cultivation  along  most  of  the  streams. 
By  a  comparison  of  all  the  facts  it  is  evident,  taking  the  past 
decade  as  a  whole,  that  there  was  an  unusually  large  suppl}'  in 
the  streams  in  1885  and  1886,  and  that  this  amount  decreased 
vear  by  year,  although  by  no  means  constantly  or  at  the  same 
rate  in  all  localities  throughout  the  arid  region.  Thus  it 
happened  during  the  very  period  of  time  while  the  area  under 
irrio"ation  was  rapidly  increasing  the  water  supply  as  a  whole 
was  decreased,  and  during  the  years  of  drought,  viz.,  1888 
and  1889,  and  in  some  localities  in   1890,  there  was  a  general 


§  28,  29.]         IRRIGATION    PAST    AND    PRESENT.  37 

loss  of  crops  upon  irrigated  lands,  due  to  the  fact  that  a  larger 
acreage  was  under  cultivation  than  could  be  irrigated  by  the 
supply  of  water  of  those  years,  by  means  of  the  methods  then 
in  use.  Not  only  was  there  loss  of  crops  in  many  parts,  but 
the  areas  which  were  irrigated  and  from  which  crops  were 
obtained  did  not  in  many  instances  receive  a  sufficient  amount 
of  water  to  produce  large  or  satisfactory  results.  And  as  a 
result,  owing  to  the  insufficiency  of  water  during  the  latter 
part  of  the  season,  some  of  the  cereal  j>lants  were  cut  for  forage, 
or  were  so  poor  that  they  were  hardly  worth  gathering  for  any 
purpose. 

§  29.  Same. — Increase  in  Supply. — The  simple  but  very 
important  fact  that  the  area  which  can  be  irrigated  is  dependent 
upon  the  amount  of  water  flowing  in  the  streams,  is  often 
ignored  in  the  general  discussions  of  irrigation  and  its  possi- 
bilities. It  is  often  taken  for  granted  that  simply  because 
there  are  vast  areas  of  fertile  land  along  a  river  some  of  which 
has  been  irrigated  profitably,  larger  and  larger  areas  will, 
with  the  progress  of  settlement,  be  btought  under  cultivation 
to  an  indefinite  extent.  The  assumption  cannot  be  correctly 
made  that  since  a  river  of  a  certain  locality  drains  a  large 
area  its  waters  must  be  proportionately  abundant.  It  is 
unfortunately  the  case  that  many  rivers  of  the  arid  region 
occupy  a  prominent  place  upon  the  map  but  carry  a  very 
small  amount  of  water  for  at  least  the  cropping  period  of 
the  year,  and  then  the  water  is  all  utilized  or  needed  for 
the  land  now  wholly  or  in  part  under  cultivation.  There  are 
four  methods  by  which  the  present  su])ply  may  be  increased, 
so  that  an  additional  acreage  can  be  irrigated.  First,  it  will 
be  necessary  to  enact  stringent  laws  to  compel  the  greatest 
economy  in  employing  the  water  and  to  prevent  waste  in 
order  to  cover  larger  areas;  second,  to  store  the  flood  and 
waste  waters  of  the  non-irrigating  season  so  that  it  can  be 
used  when  required  ;  third,  iiKjre  artesian  wells  must  l)e  dug 
so  as  to  irrigate  certain  lands  that  are  now  l)arren,  and  to 
help  out  the  irrigation  of  others  only  partially  irrigated  ; 
fourth,  the  greatest  increase  in  acreage  cultivated  by  irriga- 
tion can  be  brought  about  l)y  the  construction  of  vast  systems 


38  IRRIGATION    PAST    AND    PRESENT.  [§  29,  30 

of  canals  to  divert  the  water  of  the  larger  rivers  of  the  coun- 
try upon  lands  which  are  not  watered.  This  last  of  course, 
can  be  accomplished  only  by  the  construction  of  large  works, 
involving  the  expenditure  of  a  vast  amount  of  capital.  At 
present  the  water  is  taken  from  only  the  smaller  streams, 
for  the  reason  that  it  requires  less  capital  and  can  be  taken 
out  much  easier.  The  great  streams  of  the  country  remain 
comparatively  untouched  for  the  purpose  of  irrigation.  But 
the  time  is  coming  when  their  forces  will  be  called  in  to 
assist  in  this  enterprise  as  one  of  the  great  necessities  of  the 
country. 

§  30.  Suppression  of  Wastliii^  Waters. — There  is  no  doubt 
as  to  the  power  of  the  legislatures  of  states  and  territories  to 
enact  laws,  as  many  have  done,  for  controlling  and  supervising 
the  distribution  of  water  from  the  streams  running  within 
their  respective  boundaries,  and  used  for  the  purpose  of  irriga- 
tion, either  by  appropriators  or  those  claiming  the  right  to  the 
use  of  the  waters  by  virtue  of  being  riparian  owners,  and  thus 
preventing  parties  from  causing  wastage  by  diverting  more 
than  is  actually  needed  for  the  purpose  for  which  the  appro- 
priation was  made.  In  fact  all  the  states  affected  by  whole 
or  partial  aridity  in  their  agricultural  development  have  taken 
some  action  in  the  direction  of  regulating  and  controlling  the 
use  of  the  waters  required  for  the  purpose  of  irrigation .  State 
Engineers,  Boards  of  Public  Control,  or  Irrigation  Commission- 
ers, are  provided  for  this  purpose  either  by  the  constitutions 
of  the  respective  states  or  by  enactments  of  their  legislatures, 
the  duties  of  which  officers  are,  as  their  names  indicate,  to 
control,  supervise,  and  in  some  states  adjudicate,  all  questions 
relating  to  waters  and  water  rights.  Any  one  dissatisfied  with 
the  decisions  of  the  board  can  have  recourse  to  the  courts. 
But  especially  of  late  years,  when  every  year  the  area  of 
land  for  which  water  is  needed  is  increasing  and  the 
supply  is  constantly  diminishing,  it  has  been  the  policy  of 
legislatures  and  courts  as  far  as  possible  to  suppress  all 
wastefulness  or  wasteful  methods  in  the  use  of  waters.  In 
the  early  da3's  a  prior  appropriation  was  esteemed  to  cover 
all  water  in  sight,  whether  it  was  needed  or  not.       But    the 


§  30,  31.]         IRRIGATION    PAST    AND    PRESENT.  39 

priuciple  of  "beneficial  use "  as  the  population  increased 
soon  put  an  end  to  that  conception.  More  stringent 
regulations  may  still  be  made  in  places,  which  will  benefit 
not  only  those  who  have  at  present  water  rights  in  a  certain 
stream,  but  also  those  desiring  to  divert  water  from  the 
same.  There  are  many  appropriators  who  still  demand  the 
amount  of  water  claimed  by  them  at  first,  although  that 
amount  is  many  times  more  than  is  actually  needed  by  them 
for  the  purpose  to  which  they  apply  it.  Having  no  know- 
ledge whatever  of  the  proper  use  of  water  as  an  aid  to  agri- 
culture when  they  first  made  the  appropriation,  and  there 
being  at  that  time  an  entire  absence  of  any  written  authority 
on  the  subject  from  which  they  could  learn,  and  water  then 
being  plentiful,  it  followed  as  a  matter  of  course  that  settlers 
adopted  very  wasteful  methods  in  the  use  of  it.  Many  of 
them  still  keep  up  those  methods  notwithstanding  the  fact 
demonstrated  b}'  practical  experience  that  by  so  doing  they 
are  raising  smaller  and  poorer  crops  than  they  could  raise  by 
using  the  water  more  sparingly.  In  many  places  it  has  been 
shown  that  from  a  given  stream  five  or  six  times  as  much 
land  could  be  irrigated  as  had  been  thought  possible  in  early 
days.  But  even  with  the  present  various  enactments  for  the 
prevention  of  these  wasteful  methods  the  natural  flow  of 
streams  is  becoming  daily  more  and  more  inadequate  to 
meet  the  demand,  and  finally  it  has  become  apparent  that 
if  the  progress  of  the  irrigation  development  is  not  to  be 
seriously  checked  more  stringent  measures  will  have  to  be 
enacted,  or  other  sources  of  suppl}'  must  be  sought.^ 

§  31.  Storage  Reservoirs. — The  adoption  of  systems  of 
storage  for  the  conservation  of  the  flood  waters  now  annually 
going  to  waste  has  been  agitated  for  some  time  past.  Irri- 
gators look  forward  to  this  method  as  one  of  most  effectual 
means  of  obtaining  relief  from  present  troubles  and  uncer- 
tainties. Progress  in  this  direction  will,  however,  be 
necessarily    slow,   from    the    fact    that   in  an  undertaking   of 

1  See    Chapter    VI.,   Section    165,  cases  cited,   Wliceler    vs.    Northern 
Colorado  Irr.  Co.,  10  Colo.  5S2;  17  Pac.  487. 


40  IRRIGATION    PAST    AND    PRESENT.  [§  31,  32. 

this  kind  the  outlay  of  capital  before  an^^  return  can  be 
realized  must  be  very  large.  Efforts  have  been  made  to 
have  Congress  build  these  reser^^oirs,  but  as  yet  without 
avail;  and  nothing  has  been  done  by  the  general  govern- 
ment beyond  a  few  surveys  and  measurements  made  by 
the  Geological  Survey  (whose  operations  were  discon- 
tinued) and  the  enactment  of  the  law  of  March  3d,  1891, 
sections  18-21,  which  provides  for,  among  other  things,  a 
reservation  for  rights  of  way  for  canals,  and  for  sites  for 
reservoirs. 

Quite  a  number  of  private  reservoirs  have  been  built  with 
varying  success  throughout  the  west.  In  some  sections  of 
the  country,  such  as  parts  of  Arizona  and  New  Mexico,  owing 
to  the  phj^sical  features  of  the  territor)^  irrigation  must  depend 
absolutely  upon  the  storage  of  the  water  supplies.  Also  there 
are  certain  sections  upon  the  great  plains  where  this  can  be 
successfull}'  done.  But  this  system  has  been  most  satisfactorily 
applied  upon  small  mountain  streams  which  flow  down  into 
valleys  where  irrigation  is  needed.  Without  a  storage  S5^s- 
tem  water  enough  to  irrigate  thousands  of  acres  runs  to  waste 
in  the  winter  and  spring,  instead  of  being  hoarded  up  for  the 
summer  season,  when  it  becomes  of  inestimable  value  at  a 
time  when  the  stream  itself  is  so  reduced  in  volume  as  to  be 
insufficient  to  supply  perhaps  two  or  three  farmers  who  lay 
claim  to  its  waters  b}'  prior  appropriation. 

§  32.  Same. — Legal  (/Ontemplation. — There  are  necessarily 
legal  complications  that  must  be  decided  before  any  large 
scheme  of  this  kind  can  be  successfully  projected.  On  nearly 
every  stream  throughout  the  arid  region  more  water  is 
claimed  than  is  available,  and  were  a  man  or  a  corporation  to 
store  any  of  the  flood  waters,  and  restore  these  to  the  stream 
in  time  of  drought,  the  question  would  at  once  arise:  to  whom 
do  these  waters  legally  belong,  and  how  are  they  to  be  dis- 
tinguished from  those  which  flow  naturally  into  the  stream 
and  which  have  all  formerly  been  appropriated  ?  And  if  these 
questions  were  satisfactorily  solved,  then  come  other  and  more 
difficult  problems  as  to  the  practicability  or  possibility  of  the 
owners  of  this  stored  water  actually  recovering  it,  especially 


§  32.]  IRRIGATION    TAST    AND    PRESENT  41 

if  to  bring  it  upon  new  desert  lands  and  out  in  the  valleys 
the  stream  by  which  this  stored  water  was  conveyed  flowed 
by  the  headworks  or  over  the  diverting  dams  of  a  number 
of  ditches,  the  several  owners  of  which  were  in  need  of 
water  and  claimed  an  appropriation  of  the  waters  of  the 
stream  to  an  extent  much  greater  than  thej'  were  then  using. 
Before  any  such  scheme  can  be  successful  it  will  be  necessary 
to  ascertain  not  onl}^  the  amount  of  water  naturally  flowing 
in  the  stream  day  by  day  and  year  by  year,  and  all  the  legal 
claims  to  the  water,  but  also  the  actual  usage  of  the  same  by 
the  respective  individuals,  and  the  different  amounts  which 
each  should  justl)^  receive.  There  is  a  wide  discrepancj'' 
between  the  quantit}'  of  water  which  a  man  claims  by  virtue 
of  his  appropriation  and  that  which  he  usually  actually 
receives,  for  his  recorded  claim  may  apparently  give  him  more 
water  than  flows  in  the  stream,  while  he  actually  receives  only 
a  small  portion.  If,  therefore,  the  company  storing  the  water 
were  compelled  to  suppl}^  all  those  having  claims  to  the  stream 
there  would  be  none  left  for  the  companj^'s  use,  and  conse- 
quently the  storage  enterprise  would  be  a  failure. 

Agricultural  development,  therefore,  bj'  the  use  of  stored 
water,  or  even  by  the  more  economical  use  of  present  sup- 
plies, must  rest  upon  the  cordial  co-operation  of  all  the 
parties  who  are  at  present  enjoying  the  use  of  water  from  the 
same  source.  The  difficulty  of  such  co-operation  is  fully 
appreciated  by  the  people  of  the  arid  region,  and  many 
plans  have  been  discussed  for  bringing  this  about,  either  by 
state  control  of  all  the  waters,  which  plan,  as  we  shall  see, 
has  been  adop,ted  1)}^  the  states  of  Colorado  and  Wyoming, 
or  by  the  formation  of  districts  exercising  certain  powers, 
an  example  of  which  is  the  California  district  law  ;  or  by 
municipal  corporations  working  towards  the  same  end.  The 
great  stumbling  block  is  the  fact  that  so  many  individuals  of 
different  minds  and  opinions  have  property  rights  in  the 
waters  of  the  streams,  which  must  be  extinguished  amicably 
or  by  the  exercise  of  the  right  of  eminent  domain,  which  in 
the  recent  district  law  of  Nevada  is  forl)id(len.  Tliat  the 
various  owners  of  the  waters  do  not  at  once  co-operate  in 
some  of  these  j^kins    is  not  to    be  laid  wlioll}-   to  individual 


42  IRRIGATION    PAST    AND    PIIESENT.  [§  32,  33. 

cupidity  or  lack  of  public  spirit,  but  rather  to  the  fact  that 
to  each  irrigator  this  matter  is  of  most  vital  importance.  The 
value  of  each  man's  property  appears  to  be  at  stake,  and  that 
which  he  has  acquired  by  long  years  of  toil  and  hardship  is 
not  to  be  given  up  at  once  on  any  plea  of  the  good  of  the 
community,  especially  if,  to  him,  the  benefits  to  be  derived 
seem  doubtful  and  uncertain.  The  farmers  also  have  a  natu- 
ral fear  of  being  in  some  way  imposed  upon  in  making  any 
radical  changes,  and  are  harassed  by  the  dread  of  falling  into 
the  grasp  of  monopolies,  and  thus,  perhaps,  prefer  to  endure 
present  evils  rather  than  to  encounter  those  which  are  unknown. 


§  33.  Artesian  Wells. — Artesian  wells  result  usually  from  the 
drilling  or  piercing  of  pervious  strata  filled  with  water,  which 
is  held  from  escaping  by  impervious  layers  both  above  and 
below.  The  hydrostatic  pressure  on  this  water,  owing  to  the 
inclination  of  the  bed,  is  sufiicient  to  force  it  to  the  surface. 
In  general  the  use  and  value  of  water  from  artesian  wells  is  not 
so  desirable  for  irrigation  as  is  the  water  from  rivers  and  creeks, 
from  the  fact  that  the  latter  usually  contains  a  larger  amount 
of  silt,  which  serves  to  enrich  the  land  and  prevent  loss  of 
fertility.  Artesian  well  water,  on  the  other  hand,  is  almost 
always  clear,  although  it  sometimes  carries  a  quantity  of 
mineral  salts  in  solution,  ranging  from  those  nearly  as  soft  as 
rain  water  to  the  strongest  brine.  But  in  spite  of  these  facts 
there  are  many  wells  the  water  of  which  may  be  used  for 
irrigation,  and  thousands  of  acres  of  land  have  been  reclaimed 
by  this  means.  The  following  table  gives  the  total  number  of 
artesian  wells,  the  average  depth  in  feet,  the  average  discharge 
in  gallons  per  minute,  average  area  irrigated  per  well,  and 
total  area  irrigated  in  June,  1890,  according  to  Census 
Bulletin,  No.  193,  issued  June  nth,  1892,  prepared  by  Mr. 
F.  H.  Newell,  Special  Agent: 


.4  33.] 


IRRIGATION    PAST    AND    PRESENT. 


43 


Total 
Number. 

Average 
depth  in  feet. 

Wells  used  in  Irrigation. 

states  aud 
Territories. 

Average 
disch  in  gal.  Average  area 
per  minute,  ;     i^g^ited 
per  well  in 
1        acres. 

Total  area 

irrigated  in 

acres. 

California  .  .  . 

Colorado 

Idaho 

Kansas 

Montana 

Nebraska  .... 

Nevada 

N.  Dakota. .  . . 

Oregon 

S.  Dakota.  . . . 

Texas 

Utah 

Washington. . 
Wyoming 

3,2IO 

596 
28 

59 

'4 

33 
461 

6 

527 

534 

2,524 

9 

5 

248.00 
250.00 

83.00 
202.00 
366.00 
247.00 
215.00 
196.00 

70.00 
216.00 
292.00 
146.00 
127.00 
210.00 

164.00      j        18.63 
39.00              18.01 
11.00              13.21 
44-00              13-71 
28.00                3.00 
13.00       1          1. 00 

6.00       i          1. 00 
21.00                2.00 
15.00                4.00 
51.00             6.68 
19.00             3.00 
26.00             4.73 
89.00 

8.00 

38,378 

6,213 

185 

329 

18 

7 

20 

20 

12 

474 

438 

5,802 

Total 

8,097 

210.41 

j "     ■ 
54.43      1       13.21 

51,896 

The  report  of  the  office  of  irrigation  inquiry  published  in 
January,  1892,  estimates  the  total  number  of  wells  in  1891  to 
be  13,690,  the  greatest  number  being  sunk  in  the  years  of 
iSgo-'gi  in  Colorado,  New  Mexico  and  South  Dakota.  In 
California  the  number  is  placed  at  3,500.  Many  of  the  wells 
in  that  state  are  very  large,  and  discharge  without  ceasing 
from  a  half  to  two  millions  and  a  half  gallons  daily.  This 
.is  sufficient  to  irrigate  640  acres  of  land.  When  it  is  known 
that  without  these  works  the  land  is  practically^  valueless, 
worth  at  most  $2  or  $3  an  acre,  and  with  it  worth  from  $100 
to  $200  an  acre,  an  idea  may  be  formed  of  the  importance  and 
value  of  the  artesian  system  in  helping  out  the  water  supply 
for  irrigation  in  this  country.  There  are  many  advantages 
also  in  a  farmer  owning  his  own  source  of  water  supply, 
instead  of  having  to  depend  upon  ditches  or  canals  owned 
by  others.  Ikit  the  waters  of  artesian  wells  must  not  be 
allowed  to  run  to  waste.  It  is  found  from  experience  that 
when  there  are  a  great  many  of  tliese  wells  in  the  same  region 
many  have  gone  dry,  wliik-  the  How  of  otliers  has  been 
materially    lessened;    whicli    proves    conclusively     that     they 


44  IRRIGATION    PART    AND    PRESENT.  [§  33,  34,  35. 

obtain  their  suppl}'  from  the  same  source.  The  legislatures 
of  several  states  have  enacted  laws  providing  that  when  the 
flow  is  not  necessary  for  use  the  well  must  be  shut  off,  and 
prescribes  severe  penalties  in  case  of  failure  to  do  so. 

§  34.  Supply  from  the  Large  Rivers. — The  last  method 
for  adding  to  our  supply  of  water  in  order  to  increase 
the  acreage  that  may  be  cultivated  by  its  artificial  applica- 
tion is  the  construction  of  large  and  expensive  works,  to 
divert  the  w^ater  from  large  rivers  upon  the  lands.  Although 
in  the  arid  region  there  are  a  great  number  of  small  canals 
which  take  the  waters  from  the  inferior  streams,  there  are  no 
large  canals  that  take  the  waters  from  the  large  rivers.  These 
works  can  only  be  constructed  at  immense  cost,  and  eventually 
the  government  will  either  have  to  undertake  them,  or  offer 
some  special  advantage  to  induce  private  enterprise  to  do  so. 
Although  we  have  no  such  rivers  in  the  arid  region  as  the 
Ganges  in  India, still  a  few, such  as  the  Columbia, Missouri,  Rio 
Grande  and  Sacramento,  discharge  large  volumes  of  water, 
much  of  which  may  at  some  future  time  be  utilized.  There 
is  no  doubt  but  in  the  matter  of  irrigation  we  are  behind 
Europe,  Asia,  and  even  Africa,  not  only  in  the  extent  of  our 
works,  but  in  their  cost  and  engineering  features.  We  are 
not  only  behind  the  marvelous  nations  of  antiquity,  but  also 
behind  the  people  of  modern  India,  Algeria,  Itah-  and  Spain. 
The  explanation  of  this  is,  as  before  stated,  that  the  time  has 
not  yet  arrived  when  the  subject  of  irrigation  has  become  a 
great  national  question  or  national  necessity  as  it  has  in  the 
more  densely  populated  countries  of  the  old  world. 

§  35.  The  Present  t'oiidition  of  the  Art  of  Irrigation  in 
the  different  States  and  Territories.— The  laws  concerning 
water  and  water  rights  var}'  exceedingly.  In  some  of  the 
states  the  common  law  rights  of  a  person  who  owns  land  ad- 
joining a  stream  or  through  which  it  runs  are  abolished;  in 
others  they  are  allowed.  This  of  course  brings  about  a  conflict 
between  those  who  claim  the  water  b}-  right  of  appropriation 
and  the  riparian  owners  who  claim  by  virtue  of  ownership  the 
right  to  have  the  stream  flow  as  it  was  wont,  in  its  natural 
channel,    undiminished    in    quantity,    and  undeteriorated  in 


§35.]  IRRIGATIO^•    PAST    AND    I'RESENT.  45 

quality.  Then  again,  in  the  construction  of  irrigating  ditches 
a  ver}-  small  proportion  are  constructed  by  outside  capital, 
but  are  dug  by  the  irrigators  themselves,  acting  individ- 
ually and  taking  the  water  directly  from  the  natural  streams, 
or  in  co-operation,  by  several  farmers  joining  their  rights  and 
digging  a  ditch,  and  then  each  individual  taking  from  the 
canal  to  the  extent  of  his  right.  Thus  the  ownership  is  almost 
wholly  within  the  hands  of  the  farmers,  and  the  administra- 
tion of  water,  if  the  general  lack  of  system  can  be  called  such, 
is  wholly  within  the  control  of  men  who  are  directly  bene- 
fitted. Owing  to  the  multiplicity  of  ditches  deriving  water 
from  the  same  source  or  stream,  and  the  many  separate  inter- 
ests involved,  there  constantly  arise  conflicts  between  irriga- 
tors as  to  the  distribution  of  the  water,  especially  during 
seasons  when  the  supply  is  scanty.  Disputes  of  this  character 
are  settled  sometimes  by  private  arrangement,  but  more  often 
by  recourse  to  the  courts.  The  expense  of  lawsuits  for  the 
maintenance  of  water-rights  is  a  heavy  burden  to  the  farmer, 
and  there  is  a  wide  spread  complaint  of  the  unstability  of  the 
value  of  the  property.  As  the  land  is  absolutely  worthless  in 
portions  of  the  arid  region  without  water,  the  commencement 
of  a  lawsuit  involving  perhaps  his  entire  water  right  causes  the 
value  of  the  land  to  fluctuate  to  a  greater  or  less  degree,  and 
as  the  practice  of  irrigation  increases  and  there  is  each  year  a 
greater  demand  for  water,  this  is  more  and  more  likely 
to  occur.  The  necessity  for  better  methods  of  settling 
disputes  and  of  conferring  titles  to  use  of  water  is  beginning 
to  be  strongly  insisted  upon  by  the  farmer,  for  he  now 
appreciates  that  the  whole  value  of  his  land  depends  upon  an 
absolutely  unimpeachable  claim  to  sufficient  water  to  raise 
his  crops.  There  arises  in  the  minds  of  all  who  are 
cognizant  of  the  facts  in  the  case,  a  question  as  to  why  this 
condition  of  insecurity  has  been  allowed  to  exist,  and  why  the 
magnificent  water  resources  of  many  of  the  rivers  have  been 
allowed  year  after  year  to  go  to  waste?  There  are  also  reservoir 
sites  in  abundance,  plenty  of  flood  waters  to  fill  them,  vast 
tracts  of  fertile  land  needing  this  water.  Besides  these,  there 
are  a  legion  of  irrigators  quarrelling  with  each  other  for  the 
possession  of  the  small  amount  of  water  available  during  the 


46  IRRIGATION    PAST    AXD    PRESENT.  [§  35,  36. 

critical  season  of  the  year.  Why  do  not  these  men  devote 
their  energies  to  saving  the  flood  waters,  thus  improving  their 
own  lands  and  making  possible  the  development  of  vast 
additional  tracts?  The  answer  to  the  question  is  plain.  It  is 
all  due  to  the  fact  that  irrigation  has  grown  up  without  any 
order  or  system,  each  man  or  group  of  irrigators  taking  all 
the  water  to  be  had  and  caring  little  for  the  needs  of  others. 
The  chief  interest  of  the  various  states  of  the  arid  region 
has  been  in  mining,  and  little  attention  has  been  given  by 
public  opinion  or  legislation  to  the  needs  and  development 
of  agriculture,  so  that  wasteful  systems  of  water  distribution 
have  grown  up  and  fostered  themselves  upon  the  communities, 
preventing  free  action  and  even  obscuring  the  clear  view  of 
greater  benefits  to  be  derived  b}-  radical  improvements.  It 
will  now  take  years  to  eradicate  this  evil,  owing  to  the  law  of 
vested  rights,  whereas  if  the  United  States  government  had 
taken  the  matter  in  hand  when  the  water  of  streams  first 
began  to  be  used  for  this  purpose,  undoubtedly  a  better  and 
at  least  a  uniform  s^^stem  would  have  been  adopted. 

It  seems  strange  in  looking  back  over  the  history  of 
irrigation  that  the  Congress  of  the  United  States  should  have 
enacted  such  uniform  and  explicit  laws  in  relation  to  the  dis- 
posal of  public  lauds,  and  to  have  allowed  this  indispensable 
incident  to  those  lands  to  remain  wholly  unprovided  for.  If  a 
uniform  system  had  at  first  been  adopted  by  the  government 
for  the  disposal  of  the  waters  of  the  natural  streams  flowing 
over  the  public  domain  the  difficult  question  that  now  arises 
would  have  been  avoided. 

§  36.  Tlie  Future  of  Irrigation  in  the  United  States.— 

The  da}^  is  certainly  fast  approaching  when  the  public  will 
understand  that  irrigation  is  not  onlj'  the  concern  of  the  arid 
region,  but  of  the  whole  United  States.  That  it  is  not  only 
necessary  in  order  to  render  a  part  of  the  countr}^  habitable,  but 
is  indispensable  as  a  means  of  supporting  the  rapidly  increasing 
population  of  the  arid  region  itself,  as  well  as  aiding  in  sustain- 
ing the  population  of  the  east.  Instead  of  a  narrow  sectional 
question,  irrigation  is  becoming  more  and  more  each  j'ear  a 
broad   national    problem. 


§  36.]  IRKiaATION    PAST    AND    PRESENT.  47 

It  is  the  question  of  our  water  resources  that  is  now  of  the 
most  vital  importance.  And  Congress  will  be  compelled  before 
many  j-ears  to  take  steps  for  the  construction  of  storage  reser- 
voirs, and  for  the  great  works  necessar}-  to  add  to  the  supply 
of  water  from  the  great  rivers,  either  for  and  on  behalf 
of  the  government  itself,  or  by  aiding  and  protecting  private 
enterprises  which  would  spring  up  on  all  sides,  if  the  trouble- 
some questions  concerning  waters  and  water  rights  were 
in  a  more  uniform  and  settled  condition.  The  states  also 
ought  to  take  action  by  adopting  more  uniform  provisions 
for  the  protection,  regulation  and  control  of  water  rights. 
Capitalists,  before  the}'^  embark  in  any  of  these  enormous 
enterprises,  have  to  be  reasonably  sure  that  their  interests 
will  be  protected.  Several  of  the  states,  notably  California, 
Colorado  and  Wyoming,  have  already  taken  such  steps,  and 
enacted  laws  that  will  undoubtedly  be  highly  beneficial. 
Others  will  presumably  follow  soon.  That  the  laws  enacted 
by  the  legislatures  of  California,  Colorado  and  Wyoming 
differ  greatly  from  each  other  is  true.  But  they  are  uniform 
in  each  individual  state  and  a  great  improvement  over  the 
old  lack  of  system.  They  are  probably  the  best  that  could 
have  been  adopted  out  of  the  necessities  of  users  of  the  water 
in  their  respective  localities.  (These  various  systems  will  be 
discussed  in  a  later  portion  of  the  volume.) 

In  concluding  this  chapter,  I  will  only  add  that  it  has 
been  sufficiently  demonstrated  in  past  3^ears  that  the  art  of 
irrigation  is  an  absolute  necessity  to  a  great  portion  of  the 
arid  region;  and  that  in  the  course  of  a  few  years  it  will  be 
equally  recognized  as  a  national  necessity . 


CHAPTER  II. 
Classilicatiou  of  Waters. 


I.    PUBLIC   OR   NAVIGABLE 
WATERS. 
Section — 
•^7.  Division  of  Waters. 

38.  The  Sea— Great  Inland  Lakes. 

39.  Rivers. 

40.  Navigable  Rivers. 

41.  Same — Right  to  use  waters  of 

42.  Right   to   Navigation.       How 

Acquired. 


II.    RIVERS   AND   WATER   COURSES 

NON-NAVIGABLE. 
Section — 

43.  Non-navigable   Rivers   and 

Water  Courses. 

44.  Same — continued. 

45.  Same— Authorities  Discussed. 

46.  Small  Lakes  and  Ponds. 
Ponds. 
Subterranean  or  Underground 

Water  Courses. 
Percolating  Waters. 


47- 
48. 


49 


Public 

or 

Navigable. 


§  37.  Division  of  Waters. — For  the  purposes  of  this  work 
waters  may  be  divided  into  the  following  classification  . 
I'  Sea. 

J  Great  Inland  Lakes. 

[  Rivers  Actually  Navigable. 

[  On  Public  Do- 
{    Rivers  and     |  main  of  United 

Water          !  States, 
courses  non-    | 

navigable.      |  Owned  by  a 

[  State. 


Waters. 


Private 
or 
Non-navi- 
gable. 


Surface. 


Subterra- 
nean. 


Small 

Lakes 

and 

Ponds. 


Under 
Ground 
Water- 
courses. 


Percolat- 
I     Water. 


C  On  Public  Do- 
I  main  of  United 
J  States. 

I,  Owned  by  a 
i        State. 


With  defined 
channels. 


With  undefined 

or  unknown 

channels. 


§  37,  38.]  CLASSIFICATION    OF    WATERS.  49 

We  will  now  proceed  to  take  them  up  in  their  natural  order 
and  discuss  their  special  peculiarities. 


T.  Public  or  NaYi2;aljle  ^Valers. 

§  38.  The  Sea— Great  lulaiid  Lakes.— As  the  present  work 
will  have  very  little  to  do  with  the  sea,  a  simple  definition  will 
suffice.  The  sea  or  ocean  is  the  g-reat  mass  of  water  which 
surrounds  the  land,  and  which  probably  extends  from  pole  to 
pole,  covering  nearly  three  quarters  of  the  globe. ^ 

A  lake  has  been  defined  as  a  large  and  extensive  collection 
of  water  contained  in  a  cavity  or  hollow  of  the  earth. ^ 

Lakes  are  distinguished  from  rivers  chiefly  by  the  fact  that 
they  have  no  current.  But  the  mere  fact  that  there  is  a  cur- 
rent from  a  higher  to  a  lower  level  does  not  make  that  a 
river  which  otherwise  would  be  a  lake.^ 

In  this  country  the  great  navigable  lakes  are  regarded  as 
public  property  and  are  not  susceptible  of  private  ownership 
more  than  the  sea.^ 

In  England  and  Ireland  all  lakes  are  considered  private 
property,  owing  undoubtedly  to  the  fact  that  they  are  all 
small. ^  But  in  this  country  this  principle  is  not  sufficiently 
broad  to  embrace  our  large  fresh  water  lakes  and  inland  seas, 


iBouvier  Law  Die.  sub.  Sea;  I.  sons,  were  by  the  colony  ordinance 

Kent  Com.  26-27  ;  Angell  on  Tide  made  public  to  lie  in  common  for 

Waters,  44.  public     use.       In      the     case     of 

2Webster's  Die.  sub.  Lake.  Bradley  vs.  Rice,  13  Me.  201,  and 

SCallis  on  Sewers,  82;  Woolrych  Waterman   vs.  Johnson,   13  Pick, 

on  Sewers,  81  ;  State  vs.  Oilman-  261,    it   was  held  that  where  the 

ton,  14  N.  H.  467  ;  g  N.  H.  461.  land  in  a  conveyance  was  bounded 

4  3  Kent  Com.  Note  429  (a)  ;  by  a  pond  of  water  the  grant  ex- 
States  vs.  Franklin  Falls  Co.,  49  N.  tended  only  to  the  margin  of  the 
H.   240;  West  Roxbury  vs.   Stod-  pond. 

dard,  7  Allen   158 ;   State  vs.   Gil-  SDevonshire  vs.  Pattinson,  20  Q. 

manton,  9.  N.  H.  461;     Canal  vs.  B.  D.  263;  Holford  vs.  Bailey,  8  Q. 

People,  5  Wend.  447;  Great  ponds,  B.  1000  ;  Pery  vs.  Thornton,  23  L. 

containing   more    than  ten  acres,  R.  Ir.  402  ;  See  remarks  of  Gray, 

which   were   not  before   the   year  J.,  in  Pain  vs.  Woods,   108  Mass. 

1647  appropriated  to  private  per-  160,    169  (1871),   citing   Duke  (ed. 


50 


CLASSIFICATION    OF   WATERS. 


[§  38,  39. 


which  are  wholly    unprovided    for   by    the   common    law    of 
England.^ 

Hence  it  follows  that  lands  under  the  waters  of  great  navi- 
gable lakes  require  a  specific  grant  to  enable  the  riparian 
owner  to  go  beyond  the  shore. - 

§  39.  "Rivers. — A  river  is  a  running  stream  of  water,  pent 
in  on  either  side  by  banks,  shores  or  walls,  usually  flowing  in  a 
particular  direction,  in  a  definite  channel,  and  discharging 
into  some  other  stream  or  body  of  water. ^ 

Every  river  consists  of  the  bed,  shores  or  banks,  the  water, 
and  also  a  current.^  The  term  river  applies  where  the  waters 
flow  and  reflow  with  the  tide  as  well  as  where  the  current  is 


1805)  8,  129  ;  Marshall  vs.  Ulles- 
water  Steam  Navigating  Co.,  3  B. 
&  S.  732  ;  113  Kng.  C.  L.  732,  742, 
citing  Hale,  De  Jure  Maris,  ch.  I  ; 
Hunt  on  Boundaries  and  Fences 
(2d  ed.),  19  ;  Grej'es'  Case,  Owen, 
20  ;  Somerset  vs.  Fogwell,  5  B.  &  C. 
875,  (E.  C.  L.  R.  vol.  II.);  Pollenfen 
vs.  Crispin,  i  Vent.  122;  Bell's  Law 
of  Scotland,  171  ;  Com.  Dig.  Pre- 
rogative (D  50);  3  App.  Cas.  641; 
s.  c.  R.  10  C.  L.  398,  412  ;  2  L.  R. 
Ir.  118. 

1  Canal  Corn's  et  al  vs.  People,  5 
Wend.  423,  446  ;  Canal  Appraisers 
vs.  People,  17  Wend.  571,  597,  616, 
621  ;  3  Kent.  Com.  429,  note  (a) 
430 ;  Kingman  vs.  Sparrow,  12 
Barb.  201  ;  King  vs.  Smith,  Doug. 
441  ;  Ledyard  vs.  Ten  Eyck,  36 
Barb.  102;  In  Fletcher  vs.  Phelps, 
28  Vt.  257;  Jakeway  vs.  Barrett, 
38  Vt.  316,  323,  and  Austin  vs. 
Rutland  Railroad  Co.,  45  Vt.  215; 
17  Fed.  Rep.  466,  it  was  held  that 
lands  bounded  on  Lake  Champlain 
extend  to  the  edge  of  the  water  at 
low  water  mark;  State  vs.  Frank- 
lin Falls  Co.,  49  N.  H.  240,  250; 
State  vs.  Gilmanton,  9  N.  H.  461; 


14  N.  H.  467;  Waterman  vs.  John- 
son, 13  Pick.  261;  Hogg  vs.  Bee- 
man,  41  Ohio  St.  81;  Sloan  vs. 
Biemiller,  34  Ohio  St.  514;  Hardin 
vs.  Jordan,  16  Fed.  Rep.  823;  140, 
U.  S.  371;  Paine  vs.  Woods,  108 
Mass.  160,  169;  Commonwealth  vs. 
Vincent,  108  Mass.  441,  445;  An- 
gell  on  Water  Courses,  see's  41, 
42;  Gould  on  Waters,  sec.  84;  12 
Amer.  &  Fng.  Enc.  of  Law,  tit. 
"  Lakes  and  Ponds." 

2  Post,  Chap.  III.  sees.  86-88. 

3  Gould  on  Waters,  sec.  41;  An- 
gell  on  Water  Courses,  sec.  4. 

^Callis  on  Sewers,  77;  Woolrych 
on  Waters,  31;  Tenterden,  C.  J.,  in 
Rex  vs.  Oxfordshire,  I.  B.  &  Ad., 
289;  20  Eng.  C.  L.  389;  Rex  vs. 
Trafford,  I.  B.  &  Ad.  S74;  20  Eng. 
C.  L.  389;  8  Bing.  204;  21  Eng.  C. 
L.  272;  Queen  vs.  Derbyshire,  2  Q. 
B.  745;  Rex  vs.  Whitney,  3  Ad.  & 
El.  69;  30  Eng.  C.  L.33;  7C.  &P. 
208;  Abraham  vs.  Great  Northern 
Railway  Co.,  16  Q.  B.  586,  597;  71 
Eng.  C.  L.  584;  Menzies  vs.  Brea- 
dalbane,  3  Wilson  &  Shaw,  234, 
243;    In   Benson    vs.   Connors,  63 


§39.] 


CLASSIFICATION    OF   WATERS. 


51 


always  in  one  direction,  but  it  does  not  include  surface  water 
convej'ed  from  a  higher  to  a  lower  level  for  limited  periods, 
during  the  melting  of  snow  or  during  or  soon  after  the  fall  of 
rain,  through  hollows  or  ravines  which  at  other  times  are 
dry.^  However,  a  river  or  water-course  may  be  sometimes 
drs',  but  in  order  that  it  come  within  the  definition  it  must 
appear  that  the  water  usually  flows  in  a  particular  direction, 


Iowa,  670,  it  was  where  the  court 
finding  that  there  was  a  "water 
channel,"  a  "natural  channel"and 
the  "natural  flow  of  water  there- 
in" held  conclusive  that  it  was  a 
natural  stream  and  not  a  mere  sur- 
face channel;  McHardy  vs.  Ellice, 

I  Can.  App.  628;  39  Q.  B. (Can.), 546; 
37  Id.  580;  Palmer  vs.  Waddell,  22 
Kansas,  352;  Ashley  vs.  Wolcott, 

II  Cush  192;  Gibbs  vs.  Williams,  25 
Kans.  149;  Serrin  vs.  Grefe,  25  N. 
W.  Rep.  228;  Chicago  R.  R.  Co.  vs. 
Morrow,  42  Kansas  339.  The  bed 
is  the  soil  so  occupied  by  the 
stream  as  to  be  wrested  from  vege- 
tation: Houghton  vs.  Chicago  Ry. 
Co.,  47  Iowa  370.  The  bank  of  a 
stream  is  the  continuous  margin 
where  vegetation  ceases,  and  the 
shore  is  the  pebbly,  rocky  space 
between  that  and  the  low  water 
mark.  McCullough  vs.  Wainright, 
14  Pa.  St.  171.  The  banks  are  those 
elevations  which  contain  the  river; 
its  natural  channel  when  there  is 
the  greatest  flow  of  water.  Bouvier 
Law.  Diet.;  Howard  vs.  Ingersoll, 
13  How.  426;  Gould  on  Waters, 
Sec.  41;  Starr  vs.  Child,  20  Wend. 
149;  State  vs.  Gilmanton,  9  N.  H 
461;  14  N.  H.  467. 

lAngell  on  Waters,  Sec.  4; 
Gavit's  Adm'rs  vs.  Chambers,  3 
Ohio  496;  Weis  vs.  Madison,  75 
Ind.  241:39  Am.  Rep.  135;  Iloytvs. 


Hudson,  27  Wia.  656,  661;  9  Am. 
Rep.  472;  in  which  Mr.  Chief 
Justice  Dixon  of  the  Supreme 
Court  in  the  opinion  said:  "  The 
term  'water  course'  is  well  defined. 
There  must  be  a  stream  usually 
flowing  in  a  particular  direction, 
though  it  need  not  flow  contin- 
ually. It  may  sometimes  be  dry. 
It  must  flow  in  a  definite  channel 
having  a  bed,  sides,  or  banks,  and 
usually  discharge  itself  into  some 
other  stream  or  body  of  water.  It 
must  be  something  more  than  a 
mere  surface  drainage  over  the 
entire  face  of  a  tract  of  land, 
occasioned  by  unusual  freshets  or 
other  extraordinary  causes.  It 
does  not  include  the  water  flowing 
in  the  hollows  or  ravines  in  the 
land,  which  is  the  mere  surface 
water  from  rain  or  melting  snow, 
and  is  discharged  through  them 
from  a  higher  to  a  lower  level,  but 
which  at  other  times  are  destitute 
of  water.  Such  hollows  or  ravines 
are  not  in  legal  contemplation 
water  courses."  Washburn  on 
Easements,  209,  210;  Howard  vs. 
Ingersoll,  54  U.  S.  381;  Shields  vs. 
Arndt,  3  Green's  Ch.  234;  Rice  vs. 
Evansville,  6  West  Rep.  244; 
Luther  vs.  Winnissimet  Co.,  9 
Corp.  171;  Reynolds  vs.  Mc.\rthurs 
2  Peters  417. 


52 


CLASSIFICATION    OF    WATERS. 


[§39. 


and  has  a  regular  channel  with  bed,  banks,  or  sides. ^  And 
whatever  may  be  its  source,  as  soon  as  the  water  becomes  a 
part  of  a  natural  stream  it  belongs  to  him  in  whom  is  the 
property  of  the  stream  itself.^ 

In  the  case  of  Reynolds  vs.  Mc.  Arthur, ^  Mr.  Chief 
Justice  Marshall  in  rendering  the  opinion  of  the  Court  upon 
the  proposition  advanced  by  some  that  the  source  of  a 
river  must  be  considered  as  commencing  at  that  point  in 
its  channel  from  which  water  flows  at  all  seasons  of  the 
year,  in  opposition  thereto,  said,  "  Is  this  proposition  so 
invariably  true  as  to  become  a  principle  of  law?  We  think 
it  is  not.  A  stream  may  acquire  the  name  of  a  river,  in 
the  channel  of  which  at  some  season  of  extreme  drought 
no  water  flows.  For  a  great  portion  of  the  year,  part  of  a 
stream  may  flow  in  great  abundance,  in  which  during  a  very 


1  Chasemore  vs.  Richards,  7  H. 
L.  Cas.  349;  5  H.  &  N.  983;  2  H.  & 
N.  168;  Rawstrom  vs.  Taylor,  11 
Exch.  369;  Broadbent  vs.  Rams- 
botham,  11  Exch.  602;  Luther  vs. 
Winnessimet  Co.,  9  Cush  171: 
Ashley  vs.  Wolcott,  11  Cush.  192, 
195;  Parks  vs.  Newbarryport,  10 
Gray  28.  In  which  the  court  held 
that  the  passage  of  water  from 
rain  and  melting  snows  for  twenty 
years  gives  no  right  to  its  continu- 
ance, as  no  action  will  lie  for  the 
interruption  of  mere  surface  drain- 
age. Flagg  vs. Worcester,  13  Gray, 
601;  Dickinson  vs.  Worcester,  7 
Allen,  19:  Wheeler  vs.  Worcester, 
10  Allen,  591;  Gannon  vs.  Harga- 
don.io  Allen,  106;  Bates  vs.  Smith, 
100  Mass.,  181;  Emery  vs.  Lowell, 
to4  Mass.,  13;  Morrill  vs.  Hurley, 
120  Mass. ,99;  Bassett  vs. Company, 
43  N.  H.,  578;  Coffman  vs.  Griese- 
mer,  26  Penn.  St.,  407;  Earle  vs. 
Hart,  I  Beas'l,  280,  283;  State  vs. 
Gilmanton,  14  N.  H.,  467;  Bangor 
vs.  Lansil,  51  Maine,  521;  Greeley 


vs.  Maine  Central  Ry.  Co.,  53 
Maine,  200;  Morrison  vs.  Bucks- 
port  Ry.  Co.,  67  Maine, 353;  Buffum 
vs.  Harris,  5  R.  I.,  243;  Earl  vs. 
De  Hart,  i  Beas'l,  280;  Bowlsby 
vs.  Speer,  31  N.  J.  L.,  351;  Gillham 
vs.  Madison  Ry.  Co.,  49  111.,  484; 
Shields  vs.  Arndt,  3  Green  Ch., 
234;  Beard  vs.  Murphy,  37  Vt.,  99; 
Swett  vs.  Cutts,  50  N.  H.,  439; 
Hoyt  vs.  Hudson,  27  Wis.,  656; 
Eulrich  vs.  Richer,  37  Wis.,  226; 
41  Wis.,  318;  Barnes  vs.  Sabron, 
10  Nev.,  217;  Eddy  vs.  Simpson, 
3  Cal.,  249;  Shively  vs.  Hume,  10 
Ore.,  76;  Geddis  vs.  Parrish,  i 
Wash.  St.,  587;  21  Pac.  Rep.,  314; 
New  Albany  Ry.  Co.  vs.  Peterson, 
14  Ind.,  112.  Greencastle  vs.  Haze- 
lett,  23  Ind.,  186;  Schlichter  vg. 
Phillipy,  67  Ind.,  201;  Crewson  vs. 
Grand  Trunk  Ry.  Co.,  27  Q.  B. 
(Can.)  68. 

2  Washburn   on   Easements,  210 
and  cases  cited. 

3  2  Peters  417. 


§  39,  -40.]  CLASSIFICATION    OF    WATERS.  53 

dry  season  we  may  find  only  standing  pools.  It  would  be 
against  all  usage  to  say  that  the  general  source  of  the  river 
was  at  that  point  in  its  channel  from  which  the  water  always 
flows."  The  bed  which  is  a  definite  and  permanent  channel 
is  the  characteristic  which  distinguishes  those  waters  from 
mere  surface  drainage  flowing  without  a  definite  course  in 
certain  limits.^  Rivers  are  distinguished  from  lakes  and 
ponds  chiefly  by  the  fact  that  they  have  a  current. ^  But 
the  mere  fact  that  a  river  broadens  into  a  pond-like  sheet, 
does  not  deprive  it  of  its  character  as  a  river. -^ 

§  40.  Navigable  Rivers. — Under  the  common  law  only 
those  rivers  and  parts  of  rivers  in  which  the  tide  ebbs  and 
flows  are  known  as  navigable  rivers.  The  term  "  navigable" 
was  used  in  a  technical  legal  sense,  and  was  held  to  be  almost 
synonymous  with  the  word  tidal  when  applied  to  rivers.^ 

However  the  tidal  test  of  navigability  was  onl}^  a  prima 
facie  one,  even  at  common  law,  tidal  waters  in  many  instances 
being  held  as  non-navigable.''^ 

Above  the  ebb  and  flow  of  the  tide,  no  rivers  are  by  com- 
mon law  deemed  navigable.*^ 

1  Ibid.  Eulrich  vs.  Riclither,  37  vs.  Montague,  4  B.  &  C.  598,  in 
Wis.  226;  41  Wis.  318.  which    Mr.   Justice   Bailey    says  : 

2  Callis  on  sewers  82;  .\iner.  &  "The  strength  of  \h\s  prima/acie 
Rng.  Ency.  of  Law  Sub.  "  Lakes  evidence  must  depend  upon  the 
and  Ponds."  situation  and  nature  of  the   chan- 

SBassett  vs.  vSalisbury  Mfg.  Co.,  nel.     If   it   is   a    broad   and    deep 

43  N.  H.  569;  Bassett  vs.  Salisbury  channel  calculated  for  the  purpose 

Co.,  28  N.  H.  451.  of    commerce,   it    would    be    but 

43  Kent  13th  ed.  413,  414;  Miles  natural    to   conclude   that   it   has 

vs.  Ro.se,    I   Marsh.  313,  5    Taunt  been  a  public  navigable  one,  but 

705,  I  Eng.  C.  L.  240;  Royal   Fish-  if   it   is  a  petty  stream  navigable 

eries  vs.  Banne,  2  Davis  149.  only  at  certain  periods  of  the  tide, 

ij  Mayor    of  Lynn    vs.   Turner,  and  then  only   for   a   short   time, 

Cowper   86.      In   Miles   vs.   Rose.  and   by    very    small    boats,    it   is 

Supra,    Mr.    Chief    Justice   (^ibbs  difficult   to    suppose   that   it   ever 

said:     "The  flowing   of   the   tide,  has  been  a  public  navigable  chan- 

though  not  absolutely  inconsistent  nel."    vSee  also  McMannus  vs.  Car- 

with  the  right  of  private  property  michael,  3  Iowa  i. 

in  the  creek,  is  ^.iron^  prima  facie  ''  Ibid.     Chicago  vs.  McGinn,  51 

evidence   of     its   being    a    puljlic  111.,  272. 
navigable    river."     vSee    also    Re.K 


54 


CLASSIFICATION    OF    WATERS. 


[§40. 


But  in  this  country  the  fact  that  rivers  are  or  are  not  subject  to 
the  ebb  and  flow  of  the  tide  is  no  longer  a  test  of  navigability. 
Rivers  must  be  regarded  as  navigable  in  law  which  are  navi- 
gable in  fact.^ 

Tidal  waters  and  rivers  above  tide  water,  which  are  in  fact 
navigable  the  entire  year,  without  reference  to  the  manner  or 
degree  in  which  they  are  afiected  by  the  season,  are  presump- 
tively public  and  navigable.'-^ 

It  has  been  settled  by  a  long  line  of  decisions  that  the 
navigable  rivers  of  the  United  States  are  such  as  are  actually 
navigable  in  fact,  and  which  by  themselves  or  their  connec- 
tion with  other  waters  form  a  continuous  channel  for  com- 
merce with  foreign  countries  or  among  the  States.  Vessels 
larger  than  any  which  existed  in  England  when  the  common 
law  test  was  established,  now  navigate  rivers  and  inland  lakes 
of  this  country  for  more  than  a  thousand  miles  beyond  the 
reach  of  any  tide.  However,  what  constitutes  the  test  of  naviga- 
bility   becomes    important    when    considering   the    rights   of 


1  The  common  law  rule,  making 
the  ebb  and  flow  of  the  tide  the 
test  of  navigability  is  not  now 
applicable  to  the  United  States. 
Weise  vs.  Smith,  3  Ore.  446  ; 
Hodges  vs.  Williams,  95  N.  C.  331; 
Compare  Felger  vs.  Robinson,  3 
Ore.  455;  The  Daniel  Ball,  77  U.  S. 
557;  19  Lawyers'  Ed.  999;  The 
Moutello  II  Wall  411;  20  Lawyers' 
Ed.  191;  Chicago  vs.  McGinn,  51, 
111.,  272;  McManus  vs.  Carmichael, 
3  Iowa  i;  Bucki  vs.  Cone  (Fla.)  6 
So.  Rep.  160. 

2The  following  have  been  judici- 
ally pronounced  navigable  rivers: 
The  Androscoggin  (Thompson  vs. 
Androscoggin  Co.,  54  N.  H.  514; 
Gerrish  vs.  Brown,  51  Maine  256); 
The  Allegheny  (Dallrymple  vs. 
Meade,  i  Grant  Cas.  197);  The 
Delaware  and  Lehigh  (McKeen  vs. 
Delaware  Canal  Co.,  49  Pa.  424; 
The  Falia{Ingram  vs.  St. Tammany 


Police  Jury,  20  La.  Ann.  226);  Hog 
Bayou  (Sullivan  vs.  Spotwood,  82 
Ala.  163);  The  Mohawk  (People 
vs.  Canal  Appraisers,  33  N.  Y.  461; 
Crill  vs.  Rome,  47  How.  Pr.  398); 
The  Monongahela,  (The  Monon- 
gahela  Bridge  Co.  vs.  Kirk,  46  Pa. 
112);  The  Ohio  (Porter  vs.  Allen, 
Bind,  i;  Baker  vs.  Lewis,  33  Pa. 
301);  The  Passaic  (Newark  Acque- 
duct  Board  vs.  Passaic,  45  N.  J. 
Eq.  393);  The  Pond  Branch  (Witt 
vs.  Jefcoat;  10  Rich,  i,  S.  C,  389); 
The  Savannah  (Lawton  vs.  Comer, 
Ga.,  7  L.  R.  A.  55  and  note);  The 
St.  Joseph  (The  St.  Joseph  Co.  vs. 
Pidge,  5  Ind.  13 ;  Williams  vs. 
Beardsley,  2  Ind.  591);  The  Taultin 
and  the  St.  Mary  (Weiss  vs.  Smith, 
3  Or.  445);  The  Wallamet  (Walla- 
met  Iron  Bridge  Co.  vs.  Hatch,  19 
Fed.  Rep.  347;  Escanaba  Co.  vs. 
Chicago,  107,  U.  S.  678). 


§  40,  41.]  CLASSIFICATION    OF    WATERS.  55 

riparian  owners  to  the  bed  of  the  stream,  and  also  the  rights 
of  claimants  to  the  waters  of  the  same.^ 

In  quite  a  recent  case  in  Massachusetts, ^  Mr.  Justice 
Gray  defined  the  word  navigable  as  commonly  used  in  legal 
phraseology  as  follows:  "The  term  'navigable  waters'  as 
commonly  used  in  the  law,  has  three  distinct  meanings:  ist, 
as  synonymous  with  '  tide  waters,'  being  waters,  whether  salt 
or  fresh,  whether  the  ebb  and  flow  of  the  tide  from  the  sea 
is  felt;  or  2d,  as  limited  to  tide  waters  which  are  capable  of 
being  navigated  for  some  useful  purpose;  or  3d  (which  has 
not  prevailed  in  this  commonwealth),  as  including  all  waters, 
whether  within  or  beyond  the  ebb  and  flow  of  the  tide,  which 
can  be  used  for  navigation."^ 

§  41.  Same— Right  to  use  Waters  of— In  many  of  the 
States  inland  rivers  navigable  in  fact  are,  like  tidal  rivers 
under  the  common  law,  public  property.  Hence,  the  public 
owns  the  soil  under  them,  and  the  riparian  owners'  bound- 
aries are  limited  by  the  banks,  and  such  streams  have  the 
general  characteristics  of  public  waters.^  Especially  is  this 
true  where  the  lands  have  been  surveyed  and  patented  under 

1  Miller  vs.  Mayor  of  N.  Y.,  109  this  subject  is  towards  the  adop- 

11.8.385;  Escanaba  Co.  107  U.  S.  tioii  of  the  civil  law  doctrines.    See 

67S;  Commonwealth   vs.   Vincent,  on  the  subject  Institutes  Just.  lib. 

108  Mass.  441.  2  tit.  i;  Digest  lib.  43,  tits.  12,  13, 

SCommonwealth  vs.  Vincent,  108  14;  Domat  Civil  Law,  Preliminary, 

Mass.  441.  bk.    i,  tit.   3  j;  i,  arts,  i,   2;  Code 

3  Commonwealth  vs.    Chapiii,    5  Napoliau,  bk.  2  tit.  ch.  2,  arts  556, 

Pick.  199;  Rowe  vs.  Granite  IJridge  560-63;  yiy.  i,  ch.  3  art.  538. 

Co.    21    Pick.    344;    Murdock    vs.  -iThis  is   true   iJi   all  the   states 

Stickney,  8  Cush.  113,  115;  Attor-  which  go  to  make  up  the  arid  re- 

ney  General  vs.  Woods,  108  Mass.  gion  in  which  there  are  navigable 

436;  Waters  vs.  Lilley,  4  Pick.  145,  rivers.     Packer   vs.   Bird,  71   Cal. 

147;  Genessee  Chief  vs.  Fitzhugh,  134;  Lux  vs.  Haggin,  69  Cal.  135; 

12  How.  443;  The  Daniel   Hall,  10  People  vs.  Gold  Run,  etc.,  Co.,  66 

Wallace    557.      By    the    civil     law  Cal.    138;   Shoemaker   vs.    Hatch, 

waters  navigable  in  fact  are  such  13  Nev.  261;    Minto  vs.  DeLancy, 

in    law,    a    navigable    river   being  7  Org.  337;  Moore  vs.  Willimclte 

defined  as  "  Statioitinere  navigo  "  Transp.  Co.,  7  Ore.  355;  Johnson 

aplace  or  way  fornavigation.    The  vs.  Knott,  13  Ore.  308;  Parker  vs. 

development  of  American  Law  on  West  Coast  Packing  Co.,  17  Ore. 


56  CLASSIFICATION    OF   WATERS.  [§  41. 

the  Federal  laws.^  Hence  it  follows  that  as  the  public  is  the 
owner  of  the  river  it  has  a  perfect  right  to  the  clear  and 
unobstructed  navigation  upon  all  such  rivers  as  are  navi- 
gable in  fact.  So,  one  who  obstructs  materially  a  navi- 
gable river,  without  the  consent  of  the  legislature,  is  liable 
for  the  consequences.^  But  whether  a  river  can  be  called  a 
public  river  or  not  the  public  have  the  paramount  right  of 
passage  upon  all  streams  which  afford  capacity  for  that  purpose. 
This  right  includes  not  only  the  navigation  of  vessels  and 
boats,  but  also  floatage.^  So  also,  as  to  the  smaller  rivers 
which  are  not  navigable  for  large  boats,  it  is  held  that  where 
a  stream  is  naturally  of  sufiicient  size  to  float  small  boats,  mill 
logs  and  timber,  the  public  have  a  right  to  its  free  use  for  that 
purpose;  nor  is  it  essential  that  such  capacity  continue 
throughout  the  year,  but  it  may  only  last  for  a  few  weeks  in 
the  spring,  or  at  times  of  especially  high  water.  In  the  case 
of  Shaw  vs.  Oswego  Iron  Co.,"*  it  was  held  in  reference  to  the 
small  river  Tualatin,  that  though  it  was  capable  of  floatage 
there  were  not  the  same  reasons  for  departing  from  the  com- 
mon law  rule  as  in  the  case  of  the  large  rivers  of  the 
country,  and  that  the  bed  of  the  stream  was  the  property  of 
the  riparian  owners.  But  it  was  also  held  that  although  the 
riparian  owners  were  the  owners  of  the  bed  of  the  stream  they 

510;   Wood    vs.  Fowler,  26  Kans.  Cliristiancy,  J.,  says:  "Nor  do  we 

682;  40  Am.  Rep.  330.  think  the  right  of  navigation  in  a 

1  Haight  vs.  Keokuk,  4  Iowa,  199;  public  river    can   with   propriety 

Tonibden  vs.  Bldg.  Co.,  32   Iowa,  be  treated  as  real  estate  vested  in 

106.  the   public  or  the   vState   for   the 

2  The  Imperial,  etc.,  3  L.  R.  A.  benefit  of  every  individual  who 
234;  38  Fed.  Rep.  614;  Atlee  vs.  may  have  occasion  to  use  it.  It  is 
N.  W.  Union  Packet  Co.,  88  U.  S.  a  public  right,  but  we  see  no  rea- 
389;  Philadelphia,  etc.,  64  U.  S.  son  to  call  it  real  estate;  it  is  some- 
209.  times  called  a  'public  easement,' 

3  While  the  term  "easement"  is  but  we  do  not  think  it  comes  with- 
used  quite  generally  in  books  as  in  the  meaning  of  the  term  ease- 
applied  to  the  right  of  the  public  ment,  as  used  to  designate  an 
to  navigation  upon  all  streams  incorporal  hereditament,  as  a  right 
capable  of  the  same  it  must  be  of  way  belonging  to  one  person  or 
understood  rather  in  the  popular  estate,  over  the  lands  of  another." 
than  in  a  strictly  legal  sense.  In  4io  Ore.  371;  45  A.  M.  Rep.  146. 
Barnard  vs.  Hinkley,  10  Mich.  459; 


§  41,  42.] 


CLASSIFICATION    OF    WATERP. 


57 


had  no  right  to  divert  the  waters,  from  the  fact  that  at  certain 
seasons  of  the  year  logs  could  be  floated  down,  and  for  that 
purpose  it  had  the  character  of  a  public  stream.  Nor  was  it 
essential  to  the  public  "easement"  that  such  a  capacit}'  con- 
tinue through  the  year.  The  right  of  passage  is  paramount 
to  all  other  rights  and  interests  in  and  to  rivers  and  streams.^ 

§42.  Ri^ht  to  Navigation,  liow  Acquired.— How  is  this 
right  of  passage  acquired  by  the  public  ?  There  are  three 
methods:  First,  at  common  law  the  right  to  navigate  waters 
above  the  reach  of  the  tide  was  acquired  by  user  or  prescrip- 
tion.^   This  view  is  consistent  with  the  holding  of  the  common 


iMusservs.  Hershey,  42  Iowa, 
356,361;  McMannisvs.  Carmicliael 
3  Iowa,  I,  Delaware,  etc.,  R.  Co. 
vs.  Stump,  8  Gill.  &  J.  (Md.),  479, 
510;  29  Am.  Dec.  561;  Post  vs. 
Munn,  4  N.  J.  Iv.  61;  7  Am.  Dec. 
570;  Davis  vs.  Jenkins,  5  Jones, 
(N.  C.)  290;  Hodges  vs.  Williams, 
95  N.  C.  331;  59  Am.  Rep.  242; 
Flannagan  vs.  Philadelphia,  42  Pa. 
St.  219,  in  which  was  held  the 
right  of  navigation  in  all  rivers 
actually  navigable  is  the  para- 
mount right  of  every  citizen.  Cobb 
vs.  Bennett,  75  Pa.  St.  326;  15  Am- 
Rep.  752.  In  England,  the  right 
of  navigation  is  paramount  to  any 
right  of  property  in  the  Crown, 
and  the  latter  cannot  make  a  grant 
inconsistent  with  it.  Colchester 
vs.  Brooke,  7  Q.  B.  339;  15  L.  J., 
Q.  B.,  N.  S.,  59;  9  Jur.  1090;  Wil- 
liams vs.  Wilcocks,  8  A.  &  K.  314; 
So  also  the  right  is  superior  to  that 
of  fishery.  .Anonymous,  i  Camp, 
517,  and  note;  Lewis  vs.  Keeling, 
I  Jones,  (N.  C.)  299;  62  .'\ni.  Dec. 
168;  Moulton  vs.  Libby,  37  Me. 
472;  59  Am.  Dec.  57;  Mason  vs. 
Mansfield,  4  Cranch,  580:  Com- 
monwealth    vs.   Chapin,    5    Pick. 


41;  16  Am.  Dec.  386;  Steamboat 
"Globe"  vs.  Kurtz,  4  Greene 
(Iowa)  433;  Babcock  vs.  Herbert, 
3  Ala.  392;  37  Am.  Dec.  695)  The 
Vancouver,  2  Sawyer,  381,  iu 
which  the  court  held  a  wire  cable 
laid  across  the  Wallamet  River,  as 
a  guy  on  which  to  run  a  ferry  boat 
is  not  an  unlawful  obstruction  to 
navigation  unless  it  actually  pre- 
vent or  render  hazardous  the 
navigation  of  the  river  by  others. 
Milwaukee  Gas  Light  Co.  vs. 
"Gamecock,"  23  Wis.  144;  Scott 
vs.  Chicago,  i  Biss.  510;  Castello 
vs.  Landwehr,  28  Wis.  522;  Gates 
vs.  Northern  Pac.  Ry.  Co.,  64 
Wis.  64;  Chicago  vs.  McGinn,  51 
in.  266;  2  Am.  Rep.  295;  I'elger 
vs.  Robinson,  3  Ore.  458;  Treat  vs. 
Lord,  42  Maine,  55S;  Davis  vs.  Win- 
slow,  51  Me.  297;  Gerrish  vs. 
Brown,  51  Me.  256;  Brown  vs. 
Scofield,  8  Barb.  243;  Morgan  vs. 
King,  18  Barb.  288;  Deidrich  vs. 
N.  W.  Ry.  Co.,  42  Wis.  203;  Wise 
vs.  Smith,  3  Ore.  446;  Thunde. 
Bay  vs.  vSpeechly,  31  Mich.  342. 

-  Delaney  vs.  Boston,  2  Ilarr. 
(Del.)  489;  Brubaker  vs.  Panl,  7 
Dana,  (Ky.)  428;  32  .Am.  Dec.  in; 


58  OLASSIFICATIO:^    OF    WATERS.  [§  42. 

law  rule  as  applied  in  England,  that  non-tidal  waters  are 
private  property,  and  would  seem  to  be  applicable  to  the 
states  of  the  Union  where  that  doctrine  prevails.  It  may 
also  be  granted  by  the  express  act  of  the  legislature  of  any 
State. 1  But  it  is  generally  regarded  as  an  inherent  public 
right,  needing  no  legislative  sanction.  "  Nature  is  competent 
to  make  navigable  rivers  without  the  help  of  legislation. "^ 
Hence  as  a  conclusion  of  the  above,  whether  a  stream  is 
subject  to  the  tidal  changes  or  not,  but  is  actually  navigable 
for  large  vessels,  boats,  or  floatage  for  saw  logs,  all  or  a 
certain  portion  of  the  time,  no  one  has  a  right  to  divert  the 
water  for  any  purpose,  if  in  so  diverting  the  same  it  in  any 
way  obstructs,  hinders,  or  prevents  the  public  Jrom  using  the 
stream  when  it  shall  be  navigable  for  any  of  the  above  pur- 
poses,^ unless  the  right  to  so  divert  the  water  has  been  author- 
ized by  the  legislature  of  the  State  where  the  diversion  is 
sought  to  be  made.^  But  on  the  other  hand,  if  the  diversion 
of  the  waters  in  these  rivers  in  no  way  impairs  the  rights 
that  the  public  have  to  the  easement  of  navigation  there  is 

Ingram  vs.  Police  Jury,  20  La.  An.  1  Rivers  made  navigable  by  leg- 

126;  Berry   vs.    Carle,  3  Me.    269;  islative   enactments.  —  Ellis   vs. 

Binney's  Case,  2  Bland  Ch.  (Md.)  Carey,    30    Ala.    725;    Harold    vs. 

124;  Scott  vs.  Wilson  3  N.  H.  321;  Jones,   86   Ala.    274;   Minturn   vs. 

State  vs  Gilmanlon,  14  N.  H.  467,  Lisle,  4  Cal.    180;   People  vs.   St. 

478;  Sliaw  vs.  Crawford,  10  Johns  Louis,  10,  in,  351;  Attorney  Gen- 

236;  Canal  Appraisers  vs.  People,  eral  vs.  Del.  etc.  R.  Co.,  27  N.  J- 

5    Wend.    423,    444;    Pearsall    vs.  Eq.  i,  7;  People  vs.  Gutchess,  48 

Post,  20  Wend,  in;  22  Wend  425;  Barb.  (N.  Y.)  656;  State  vs.  Dibble; 

Wheeler  vs.    Spinola.,    54   N.    Y.  4  Jones  (N.  Car.)  107;  Walker  vs. 

377;  State  vs.  Thompson,  2  Strob.  Board  of   Public  Works,  16  Ohio 

(S.  C.)  12;  Stump  vs.  McNarry,  5  540,  545;  Coover  vs.   O'Connor,  8 

Humph.  (Tenn.)  363;  42  Am.  Dec.  Watts    (Pa.)    470;    Deddrick    vs. 

437.    But  it  has  been  held  that  user  Woods,    15   Pa.    St.    9;   Baker  vs. 

alone  is  not  sufficient  to  establish  Lewis,  33  Pa.  St.  301;  S.  C.  Am. 

the  fact  of  dedication  to  the  public.  Dec.  589;  Witt  vs.  Jefcoat,  10  Rich. 

Munson  vs.  Hungerford,  6  Barb.  (S.    Car.)  398;  Selman  vs.  Wolfe, 

265;  Curtis   vs.    Kessler,  14  Barb.  27  Tex.  68. 

511.     In  England,  prescription  is  2  Martin  vs.  Bliss,  5  Blackf  (Ind.) 

considered  to  be  the  true  founda-  35,  32  Am.  Dec.  52. 

tion  of  the  right  of  passage  above  ^Chap.  III.  sees.  53-54- 

tide  water.     Woolrych  on  Waters  ^  The  Passenger  Cases,   7   How. 

(2nd  Ed.)  40.  283;  The  Bright  Star.  Woolw,  266. 


§  42,  43.]  CLASSIFICATION    OF    WATERS.  59 

no  doubt  but  that  the  water  may  be  diverted  from  a  navi- 
gable river  for  irrigation  or  any  other  useful  purpose. 
Although  any  other  obstruction  in  navigable  waters  is  a 
public  nuisance,^  such  waters  may  be  appropriated  for  irri- 
gation, and  it  follows  of  course  that  it  must  be  by  an  open 
and  physical  act,  for  a  valuable  use,  and  properly  applied.^ 
No  individual  can  maintain  an  action  for  daijiages,  for  a 
public  nuisance  for  the  diversion  of  the  waters  of  a  navi- 
gable stream,  unless  he  has  sustained  an  injury  which  is 
special  in  its  character  or  which  is  not  common  to  others 
affected  by  the  nuisance.-' 

II.  Rivers  uiid  Water  Courses  Non-Navipible. 

§  43.  Non-Navigable  Rivers  and  Water  Courses.— To  this 
class  of  water  courses  belong  that  vast  number  of  inland  fresh 
water  rivers  and  streams  that  are  to  be  found  in  every  portion 
of  this  country,  emptying  their  waters  into  larger  rivers  and 
streams  and  finally  carried  to  the  sea.  It  is  with  this  class  of 
rivers  and  streams  that  our  subject  has  now  to  do.  They 
are  the  feeders  and  sources  of  the  large  rivers,  and  their 
general  characteristics  are  the  same  in  all  respects.  They 
have  the  alveus,  or  bed,  and  the  water;  but  they  have 
banks  instead  of  shores.  The  banks  are  more  definitely 
marked  and  usually  elevated  to  a  greater  height  than  in  the 

275;  Sears  vs.  Warren  Co.  36  Ind.  Co.,    22   Barb.    297;    Osborne    vs. 

367,   p.    237,    n.   I;, Case  of   vState  Brooklyn  City  Ry.  Co.  5  Blatchf. 

Freight  Tax,    15  Wall,  232;   s.    c,  366;  Currier  vs  West  vSide  E.  P.  R. 

Com.  vs.  Phila.  &  Reading  R.  Co.  Co.,  6  Blatchf.  487.     In  Seely  vs. 

62  Penn.  vSt.  286;  i  Pearson  (Pa.).  Bishop,   19  Conn.   128;  where   the 

379;  Com.  vs.  Erie  Ry.  Co,  id.  345;  grievance  complained  of  consisted 

Wilson  vs.  Blackbird  Creek  Marsh  in   the  erection  by  the  defendant 

Co.,  2  Pet.  245.  of  a  dam  in  a  navigable  creek,  by 

I  Georgetown  vs.  AlexanderCaiial  means    of     which     the     plaintiff 

Co.  12  Pet.  91.  was  prevented  from  passing  along 

-Clough  vs.  Wing,  17   Pac    Rep.  such  creek  from  his  residence  to 

453.  his   land    I)clow,  and  in  the   con- 

SDougherty  vs  P>uuliug  i  San<lf.  verse,  it  was  held  that  this  obstruc- 

1;    Mills    vs.    Mall,   9   Wend.    315;  lion  was  not  the  subject  of  private 

Davis  vs.  Mayor  of  N.  V.  14  X.  V.  action. 
506;  Carharl  vs.  Aulnirn  Cias  I.iglil 


60  CLASSIFICATION    OF    WATERS.  [§  43. 

case  of  the  shores  of  tidal  rivers.  The  current  always  flows 
in  the  same  direction,  which  is  different  in  a  river  whose  current 
is  influenced  by  the  tide.  And,  except  in  times  of  great 
freshets  or  extraordinary  floods,  the  water  does  not  rise  high 
enough  to  overflow  its  banks,  unless  the  river  flows  through 
low  marshy  or  swampy-  lands.  Fresh  water  rivers,  although 
not  subject  to  the  daily  fluctuations  of  the  tide,  may  rise  and 
fall  periodically  at  certain  seasons  of  the  year,  and  thus  have 
defined  high  and  low  water  marks.  The  low  water  mark  is 
the  point  at  which  the  river  or  stream  recedes  at  its  lowest 
stage;  and  the  high  water  mark  is  the  line  which  the  river 
impresses  upon  the  soil  by  covering  it  for  sufficient  periods  to 
deprive  it  of  vegetation  and  to  destroy  its  value  for  agricul- 
ture. Mr.  Justice  Wayne  in  delivering  the  opinion  of  the 
Supreme  Court,  of  the  United  States,  in  the  case  of  Howard 
vs.  Ingersol'  said  upon  this  subject  :  "When  the  commissioners 
used  the  words  '  bank  '  and  '  river,'  they  did  so  in  the  popular 
sense  of  both.  When  the  banks  of  rivers  were  spoken  of 
those  boundaries  were  meant  which  contained  their  waters  at 
their  highest  flow^  and  in  this  condition  they  make  what  is 
called  the  bed  of  the  river.  They  knew  that  rivers  have 
banks,  shores,  w^ater  and  a  bed;  and  that  the  outer  line  on  the 
bed  of  a  river,  on  either  side  of  it,  may  be  distinguished  upon 
every  stage  of  its  water,  high  or  low,  at  its  highest  or  lowest 
period.  It  neither  takes  in  overflowed  land  be3^ondthe  bank, 
nor  includes  swamps  nor  low  grounds  liable  to  be  overflowed, 
but  reclaimable  for  meadows  or  agriculture  or  which  being  too 
low  for  reclamation,  though  not  always  covered  with  water, 
may  be  used  for  cattle  to  range  upon  as  natural  or  uninclosed 
pasture.  But  it  may  include  spots  lower  than  the  bluff"  or 
bank,  whether  there  is  or  is  not  a  growth  upon  them,  not  form- 
ing a  part  of  the  lands,  w^hether  low  or  high,  we  know^  to  be 
upland  or  fast  low  land,  if  such  spots  are  within  the  bed  of 
the  river.  Such  a  line  ma}"  be  found  upon  the  bed  of  every 
river,  from  its  source  to  its  mouth.  It  requires  no  .scientific 
exploration  to  find  or  mark  it  out.  The  eye  traces  it  in  going 
either  up  or  down  a  river  in  any  stage  of  water.     With  such 

1  13  Howard  381. 


§  43,  44.] 


CLASSIFICATION    OF    WATERS. 


61 


an  understanding  of  what  a  river  is  as  a  whole,  from  its  parts, 
there  is  no  difficulty  in  fixing  the  boundary  line  in  question.  "^ 

§  44.  Siiiue. — Coutiuued. — We  have  stated  before  that  a 
river  does  not  include  surface  water  conveyed  from  a  lower  to  a 
higher  level,  for  limited  periods  during  times  of  extraordinary 
high  water,  but  that  at  times  a  river  or  a  stream  may  be  drj"-. 
Now  in  the  arid  region  it  often  happens  that  the  character 
of  a  stream  determines  the  rights  of  those  claiming  interest 
in  and  to  the  waters  of  the  same,  either  by  virtue  of  an 
appropriation  of  the  waters,  or  from  the  fact  that  their  land 


1  In  Stover  vs.  Jack,  6o  Peuu.  vSt. 
339,  the  Court  held  that  ' '  low 
water  mark"  as  the  limit  of  a 
riparian  owner's  title  is  the  ordi- 
nary low  water  mark  unaffected 
by  drought.  In  West  vs.  Taylor, 
i6  Ore.  163;  13  Pac.  Rep.  665,  Mr. 
Justice  Straham,  in  his  opinion  in 
this  case  upon  the  subject  as  to 
what  is  a  water  course  of  this  class 
collects  the  authorities  as  follows: 
"  In  McUmber  vs.  Godfrey,  108 
Mass.  219,  it  is  said:  '  But  the  de- 
fendant contends  because  at  a 
point  on  his  land  about  five  rods 
above  the  plaintiff's  lands  the  water 
spreads  out  over  the  surface,  cov- 
ering a  space  of  a  few  rods  in 
width,  and  thus  runs  upon  and 
across  the  plaintiff's  land,  which 
is  a  level  meadow,  and  covers  the 
same  for  several  rods  in  width, 
irrigating  it  in  a  valuable  manner 
through  its  whole  length,  being 
about  seven  rods,  and  during  this 
whole  length  of  twelve  rods  has 
no  defined  channel,  it  ceases  to  be 
a  water-course,  and  is  to  be  re- 
garded as  surface  water,  to  the 
flow  of  which  the  plaintiffs  have 
no  right.  If  the  whole  of  the 
stream  had  sunk  into  defendant's 


soil,  and  no  water  remained  to 
pass  to  plaintiff's  land  except  un- 
der the  surface,  it  would  have 
ceased  to  be  a  water-course,  and 
the  plaintiff  would  have  had  no 
right  to  it  (Broadbent  vs.  Rams- 
bothan,  11  Exch.  602;  Buffoon  vs. 
Harris,  5  R.  I.  243),  or,  if  the 
water  had  only  flowed  in  tempo- 
rarj-  outbursts,  caused  by  melting 
snow"  or  rain,  it  would  have  been 
surface  water,  as  in  Ashley  vs. 
Woolcott,  II  Cusli.  192.  The  de- 
fendant might  have  diverted  it, 
and  the  plaintiffs  might  have  raised 
barriers  on  their  land  to  prevent 
its  flowing  on  their  lot  below. 
Gannon  vs.  Hargadon,  10  Allen 
106;  Franklin  vs.  Fiske,  13  Allen 
211.  But  where  owing  to  the  level 
character  of  the  land,  it  spreads 
out  over  a  wide  space  without  any 
apparent  banks,  yet  usually  flows 
in  a  continuous  current,  and  passes 
over  the  surface  to  the  land  l)elow, 
it  still  continues  to  be  a  water- 
course. Gillett  vs.  Johnson,  30 
Conn.  180;  so,  in  a  somewhat 
analogous  case  (Palmer  vs.  Wad- 
dell,  22  Kan.  352)  it  is  said:  'If  the 
face  of  the  country  is  such  as 
neces.sarily   collects  in    one  body 


62 


CLASSIFICATION    OF    WATERS. 


[§44, 


adjoins  the  water  course — whatever  it  may  be  called — and  it 
becomes  necessary  for  us  to  determine  exactly  what  consti- 
tutes under  the  law  a  natural  stream  from  which  an  appropri- 
ation can  be  made,  or  to  which  riparian  rights  attach.  And 
in  general,  I  will  say  that  to  maintain  either  of  those  rights 
to  a  stream  it  must  be  made  to  appear  that  the  water  flows  in 
a  certain  direction,  and  by  a  regular  channel  with  banks  and 
sides.  It  need  not  be  shown  to  flow  continually,  and  indeed 
at  times  it  may  be  dry,  but  it  must  have  a  well  defined  and 
substantial  existence.  Those  who  are  acquainted  with  the 
streams  and  water-courses  of  the  arid  region  know  that  it 
would  be  plainl}'  impracticable  to  require  that  the  flow  of 
water  should  be  continuous,  uninterrupted  and  perennial, 
during  the  entire  year,  and  from  year  to  year,  in  order  that 
either  of  the  rights  above  named  should  attach.  It  is  very 
well  known  that  some  of  the  most  important  and  well  defined 


so  large  a  quantity  of  water,  after 
the  heavy  rains  or  melting  snows, 
as  to  require  an  outlet  to  some  com- 
mon reservoir,  and  if  said  water 
is  regularly  discharged  through 
a  well-defined  channel  which  the 
force  of  the  water  has  made  for 
itself,  and  which  is  the  accustomed 
channel  through  which  it  flows 
and  has  flowed  from  time  imme- 
morial, such  channel  is  a  natural 
water-course,'  and  Gould  on  Wa- 
ters, §  264  is  to  the  same  effect. 
It  is  there  laid  down  as  an  elemen- 
tary principal  that  '  a  stream  does 
not  cease  to  be  a  water-course  and 
become  mere  surface  water  be 
cause  at  a  certain  point  it  spreads 
over  a  level  meadow  several  rods 
in  width,  and  flows  for  a  distance 
without  defined  banks  before  flow- 
ing again  in  a  definite  channel.' 
So,  also,  in  Shields  vs.  Arndt,  4 
N.  J.  E.  245,  the  same  principle 
in  effect  was  thus  stated  :  '  A 
spring   on    the    defendant's  land. 


sixteen  rods  from  the  land  of  the 
plaintiff,  supplied  a  small  stream 
of  water  that  ran  to  the  plain- 
tiff's land  ;  the  water  as  it  came 
from  the  spring  being  sufficient 
to  fill  a  half-inch  pipe,  and  the 
flow  being  constant  and  nearly 
uniform,  except  in  very  dry  times, 
when  it  failed  to  run.  For  seven 
rods  the  stream  descended  rapidly 
in  a  well-defined  course,  to  a  piece 
of  marshy  ground,  when  it  spread 
out  so  that  its  flow  was  slight  and 
not  sufficient  to  break  the  turf, 
but  it  was  generally  sufficient  to 
form  a  continuous  sluggish  cur- 
rent along  this  surface  in  a  natu- 
ral depression  to  a  watering  place 
within  the  plaintiff's  line.'  This 
was  adjudged  to  be  a  water-course 
within  the  meaning  attached  in 
law  to  that  term."  See  also  Gibbs 
vs.  Williams,  25  Kan.  210;  37  Am. 
Rep.  241;  Barnes  vs.  Sabron,  10 
Nev.  217;  Angell  on  W.  C.  §4; 
Shively  vs.  Hume,  10,  Ore.  76. 


§  44,  45.]  CLASSIFICATION    OF    WATERS.  63 

streams  of  the  arid  region  become  almost,  and  sometimes 
entirely,  dry  during  a  portion  of  the  year.  All  of  them  never- 
theless have  well  defined  beds,  channels,  banks  and  cur- 
rents of  water,  and  are  in  every  respect  natural  streams 
to  which  water  rights  may  attach.  At  certain  periods  of 
the  year  water  flows  on  the  surface  in  a  well  defined 
course,  and  there  is  at  all  times  what  is  known  as  the  under- 
flow. This  is  the  broad  and  deep  subterranean  volume  of 
water  which  slowly  flows  through  the  sand  and  gravel 
underlying  the  most  if  not  all  the  streams  which  traverse 
the  countrj^  adjacent  to  the  mountain  systems  of  the  arid 
region.  These  underground  streams  are  probably  much 
greater  in  volume  in  some  cases  than  the  water  upon  the  sur- 
face; and  are,  as  far  as  rights  of  appropriation  or  riparian 
rights  are  concerned,  but  a  valuable  portion  of  the  well 
defined  surface  stream.^ 

§  45.  Same  —  Authorities  Discussed. — The  question  as  to 
what  constitutes  a  water  course  is  of  great  importance,  and 
the  subject  has  been  discussed  by  several  Courts  of  last 
resort,  not  only  of  the  States  and  Territories  of  the  arid 
region,    but    also    of  the    eastern    States.       In     Barnes    vs. 

iThe    laws     governing     subter-  complaint   alleging   that   the    de- 

ranean  waters  will  be  discussed  in  fendant  had  overflowed  the  waters 

a   future   part.      Post   sees.  78,  79  of  said  water-course, to  the  damage 

298,  299.  of  said  premises,  coupled  with  an 

Water-  course-  Channels.     An  instruction  that  if  one  diverts  the 

instruction,  that  if   a  jury  found  waters   of    a   stream    by   artificial 

that   the    waters   of   a    particular  means  he  is  bound  to  take  care  of 

stream  flowed   through   a   certain  the   same   until   it   returns   to   its 

slough,  ditch   or  channel,  on    the  natural   bed.      Held  to  be  correct 

land   of   the   plaintiff   during   the  in  Tucker  vs.  Salem  Mills,  15  Ore. 

two    years    preceding     the     com-  5S1;  16  Pac.  Rep.,  426. 
mencement    of    the    action,    that  But  see  vSimmonds  vs.  Winters, 

they  had  been  running  for  twenty  21  Ore.,  35;  27  Pac.  Rep.  7,  where 

years  before  that  time,  then  such  the  Court  held,  that  a  water-course 

slough,  ditch  or  channel  was  for  is  a  stream  of  water  usually  flowing 

the   purposes   of    the    action   the  in  a  particular  direction,  with  well 

channel  of  a  water  course,  and  its  defined    channel    and   banks,  but 

banks   the   banks    of    the   water-  the  water  need  not  flow  continu- 

course,  within  the  meaning   of  a  ously,  as  the   channel  may  some- 


64  CLASSIFICATION    OF    WATERS.  [§  45. 

Sabron,^  which  is  a  leading  case  upon  the  subject,  Mr. 
Chief  Justice  Hawley,  in  rendering  the  opinion  of  the  Court, 
said:  "It  appears  from  the  testimony  that  Current  Creek  is 
partly  supplied,  at  certain  seasons  of  the  year,  from  springs 
having  their  rise  and  flow  along  its  banks  and  bed,  but  mostly 
from  melting  snow  on  the  mountain.  There  is  no  regularity  as 
to  the  quantity  of  water,  for  to  quote  the  language  of  several  of 
the  witnesses,  'no  two  seasons  are  alike,'  the  amount  of  water 
flowing  being  dependent  upon  the  character  of  weather  during 
the  preceding  winter.  After  a  cold  winter,  when  deep 
snows  have  fallen,  the  water  flows  in  greater  quantity  and  for 
a  longer  time  than  after  an  open  winter  with  but  little  snow; 
hence,  the  amount  of  water  varies  in  the  summer  season — 
according  to  difi'erent  statements  made  by  different  witnesses — 
from  nothing  to  five  thousand  inches.  There  is  a  conflict  of 
evidence  as  to  the  real  character  of  this  stream;  the  conflict, 
however,  is  principally  confined  to  the  question,  whether  the 
water  therein  'continuously  flows.'  The  fact  that  should 
have  been  found  by  the  Court  below  was,  whether  or  not 
Current  Creek  was  a  natural  watercourse  and  a  surface  stream. 
To  ascertain  that  fact  it  was  not  necessary  to  determine 
whether  the  water  was  continuouslj^  flowing.  'A  watercourse, ' 
says  Angell,  'consists  of  bed,  banks  and  water;  yet,  the  water 
need  not  flow  continually,  and  there  are  many  watercourses 
which  are  sometimes  dry.  There  is,  however,  a  distinction  to 
be  taken  in  law  between  a  regularly  flowing  stream  of  water, 
which  at  certain  seasons  is  dried  up,  and  those  occasional 
bursts   of  water   which    in  times  of  freshets  or  in  times  of 

times   be  drj-;  but   this   does   not  and   in  its  onward  flow  cuts  out 

include  the  water  descending  from  through   the   soil   a   well   defined 

the    hills     without     any     definite  channel  which  bears  the  unmistak- 

channel,  only  in  times  of  melting  able  impress  of  the  frequent  action 

snows  and  ice.    But  the  Court  also  of    running    water,   and  through 

held,   where  water   owing  to  the  which  it  has  flowed  from  time  im- 

hilly  or  mountainous  configuration  memorial    during    such    seasons, 

of    the    country    accumulates    in  such  a  stream  is  to  be  considered  a 

large   quantities   from   rains    and  watercourse,  and  governed  by  the 

melting    snows,    and    at    regular  same  rules, 

seasons  descends  through   gullies  i  lo  Nev.  217. 
or  ravines  upon  the  lands  below 


§  45.]  CLASSIFICATION    OF    WATERS.  65 

melting  of  ice  or  snow,  descend  from  the  hills  and  inundate 
the  country.  *****  The  finding  'that  the  same  is  sup- 
plied at  certain  seasons  of  the  year  from  the  snows  on  the 
mountains  above  the  valley,  and  from  the  springs  having  their 
rise  and  flow  along  the  banks  and  bed  of  the  same,'  (being 
sustained  by  the  evidence)  gives  to  this  creek  the  character  of 
a  natural  watercourse,  in  so  far  as  finding  one  is  involved. 
It  is  well  settled  that  in  order  'to  maintain  the  right  to  a 
watercourse  or  brook  it  must  be  made  to  appear  that  the 
water  usually  flows  in  a  certain  direction,  and  by  a  regular 
channel  with  banks  or  sides.  It  need  not  be  shown  to  flow 
continual]}',  *  *  *  *  and  it  may  be  dry;  but  it  must  have  a 
well  defined  and  substantial  existence.'  "^  On  the  other 
hand,  in  the  case  of  Green  vs.  Carotta,  the  findings  in  the 
case  were  that  the  owner  of  certain  lands  upon  which  there 
was  a  lagoon  situated  having  no  natural  outlet,  cut  a  ditch 
for  irrigating  purposes.  He  afterwards  conveyed  part  of  the 
land  upon  which  the  lagoon  was  situated  to  the  defendants, 
and  the  rest  to  the  plaintiffs;  and  it  seems  that  the  ditch  ran 
between  the  tracts  convej^ed.  Upon  the  question  as  to 
whether  the  ditch  was  a  watercourse  to  which  the  plaintiffs 

1  Angell  on  Water  Courses  sec.  Parks  vs.  Newburyport,   lo  Gray, 

4;  Shively  vs.  Hume,  lo  Ore.,  76;  28;  Flagg  vs.  Worcester,  13  Gray, 

Lux   vs.    Hagin,  69  Cal.,  255;    10  601;  Eulrich  vs.  Richter,  41  Wis., 

Pac.  Rep.,  770;  Gibbs  vs. Williams,  318;  Hoyt  vs.  City  of  Hudson,  27 

25  Kan.,  214;    37  Am.  Rep.,  241;  Wis.,  664;  22  Am.  Rep.,  714;  Kelly 

Palmer  vs.  Waddell,  22  Kan.,  352;  vs.    Dunning,    39   N.   J.    Eq.  482; 

Geddis  vs.  Parish,   i    Wash.,  587;  Pyle   vs.  Richards,  17   Neb.,  180; 

21    Pac.    Rep.,    314;     Hanson    vs.  22   N.    W.    Rep.,   370;    Jones    vs. 

McQue,  42  Cal.,  303;  Dickinson  vs.  Wabash,  etc.,  Ry. Co.,  18  Mo.  App. 

Worcester,  7  Allen,  19;  Shields  vs.  251. 

Arndt,  4  N.  J.  Eq.,  234;  Gillettvs.  A    stream    does     not    cease    to 

Johnson,  30  Conn.,  180;  L/Uther  vs.  be  a   water   course,    and   become 

Winnisimmet    Co.,   9    Cush.,    71;  mere   surface   water,    because    at 

McUmber  vs.  Godfrey,  108  Mass.,  certain  points  it   spreads   over   a 

219;  Ashley  vs.  Wolcott,  11  Cush.,  level  meadow  several  rods  in  width 

I92;     Gannon    vs.     Hargadon,    10  and    flows  for  a  distance  without 

Allen,  106;  Swett  vs.  Cutts,  50  N.  defined  banks  before  flowingagaiti 

H.,   439;    9  Am.    Rep.,    276;   Ikif-  in  a  definite  channel.       West  vs. 

foom  vs.  Harris,  5  R.  I.,  243;  ICarl  Taylor,  16  Ore,  165;  13  Pac.  Rep. 

vs.    Dellart,    12    N.   J.    Ivq.,    2S0;  665.      In    the   case   of   Taylor   vs. 


66  CLASSIFICATION    OF    WATERS.  [§  45,  46. 

had  acquired  riparian  rights,  the  Court  said  }  "From  the  find- 
ings which  were  made  on  all  the  material  issues  contained  in 
the  pleadings,  and  are  supported  by  the  evidence,  it  appears 
that  there  never  was,  in  fact,  any  stream  of  water  flowing  in  a 
natural  channel  where  the  plaintiffs  claimed,  that  originally 
the  water  in  dispute  was  contained  in  a  lagoon  or  lake  fed  by 
a  spring  located  on  the  land  of  the  defendant  from  which  no 
natural  stream  flowed  or  existed;  *  *  *  *  that  said  ditch  ran 
down  to  the  border  of  the  plaintiff's  lands,  and  that  by  leave 
of  the  defendants  and  their  predecessors,  not  in  writing,  the 
plaintiffs  had  used  'waste  water'  of  said  ditch,  but  had  no 
further  right  or  claim  therein.  *****  To  us  it  seems  that 
the  defendants  and  their  predecessors  owned  the  water  in 
dispute  as  absolutely  as  if  it  had  been  drawn  from  a  well 
located  on  their  land,  and  overflowing  the  same  or  not  at  their 
election,  and  that  the  plaintiff's  never  acquired  any  riparian 
right  to  the  water,  because  it  never  flowed  to  or  over  their 
land  in  an}^  natural  channel  whatsoever,  that  the  only  water 
which  came  to  them  was  'waste  water'  which  they  got  through 
the  revocable  license  of  the  defendants  and  their  predecessors 
in  interest."^ 

As  to  the  distinction  made  in  our  diagram  between 
this  class  of  rivers  and  streams  flowing  over  the  Public 
Domain  of  the  United  States  and  those  upon  State  Lands, 
I  will  say,  the  only  distinction  between  the  two  arises  as 
regards  the  difference  in  laws  regulating  the  appropriation  of 
the  waters,  which  will  be  discussed  in  a  subsequent  portion  of 
this  work. 

§  46.  Small  Lakes  and  Ponds. — Small  lakes  are  distin- 
guishable from  rivers,  chiefly  by  the  fact  that  they  have  no 
current.     The  distinction  between  a  stream  and  a  pond  or  lake 

Welch,  6   Ore.,   199,  it   was  held:  a  well  defined  and  constant  stream 

That    every    proprietor     of    land  in  a  subterranean  channel,  but  not 

through  which  flows  a  stream  of  to  water  percolating  through  the 

water    has  a  right  to  the  use  of  soil   or   even  flowing  through  an 

the    water   flowing   in  its  natural  unknown  or  undefined  channel, 

channel    without    diminution     or  1  72  Cal.,  267. 

obstruction.      And  that  the  same  2  See  also  Gillett  vs.  Johnson,  30 

rule  applies  to  water  that  flows  in  Conn.,  180. 


§  46.]  CLASSIFICATIOX    OF    WATERS.  67 

is,  that  in  the  one  case  the  water  has  a  natural  motion  or 
current,  while  in  the  other  the  water  is  in  its  natural  state, 
substantially  at  rest.  This  is  so,  independent  of  the  size  of 
the  one  or  the  other.  The  existence  of  some  current  in  a  body  of 
water  is  not  of  itself,  in  every  instance,  sufficient  to  make  it 
a  stream;  nor  will  the  swelling  of  a  stream  into  a  broad  water 
sheet  make  it  a  lake.^  Small  lakes  are  distinguishable  from 
large  lakes  only  in  size;  yet,  the  laws  which  govern  them  and 
the  soil  under  their  waters  are  radically  different.^.  The 
distinction  in  this  country  between  public  and  private  lakes 
depends  in  most  states  entirely  upon  the  size  and  navigability 
of  the  particular  lake  and  its  relation  to  other  waters  which 
flow  into  it,  or  with  which  it  is  connected.  Hence,  it  follows, 
that  a  lake  or  pond  which  is  not  really  useful  for  navigation, 
although  of  considerable  size  compared  with  ordinary  bodies 
of  fresh  water,  may  be  private  property.-''  Upon  a  close 
examination  of  the  authorities  upon  this  subject  it  will  be 
found  that  they  hold  differently  in  different  states;  some 
holding  that  the  riparian  owner  whose  lands  adjoin  an  inland 
lake  or  pond  takes  only  to  the  water's  edge  at  low  water  mark, 
and  others  that  he  takes  to  the  centre  of  the  lake  or  pond. 

But  with  lakes  of  this  class,  as  with  rivers,  the  public 
have  the  right  of  navigation,  paramount  to  all  other  rights 
of  riparian  owners,  if  they  are  needed  and  used  for  that  pur- 
pose. And  this  right  of  navigation  must  not  be  disturbed, 
either  by  drainage  of  the  lake  or  by  obstructions  in  the  same. 

As  a  part  of  the  common  law  of  the  country,  arising 
out  of  public  necessity,  convenience  and  common  con- 
sent, the  public  have  the  right  to  use  rivers  and  lakes  and 
parts  of  them,  although  not  strictly  public  waters.     If  they  be 


1  Trustees  vs. SchroU,  120  111.  509,  has  no  current,  is  a  lake  and  not 

where  it  was  also  held  that  a  body  a  stream  of  water. 

of  water  five  or  six  miles  lonjj,  and  2  See  following  Chapter,  section 

in    some  places  a  mile  in   width,  6b. 

which  is  fed  by  springs,  and  has  no  3  Hodges  vs.  Williams  95  N.  C. 

connection  with  a  river  or   other  331;    Ledyard   vs.   Ten.    Eyclc,  35 

stream  except  a  slough  which  is  Barb.  125,  disapjjroved  in  Gouver- 

dry  during  the  summer,  and  the  neur  vs.  National  Ice  Co. .57   Ilun. 

body  of  water  in  its  natural  state  474;   School   Trustees  vs.   Schroll 


68 


CLASSIFICATION    OF   WATERS. 


[§  46,  47. 


actually  navigable  in  fact  they  are  subject  to  this  right  of 
the  public  for  the  purpose  of  highway  and  navigation  when 
they  can  be  employed  in  travel,  trade  or  commerce.  Such' 
waters  are  treated  as  pzcblici  juris  in  so  far  as  they  may  be 
properl}^  used  for  such  purposes  in  their  natural  state.  The 
public  right,  however,  arises  only  in  case  of  their  navigability. 
And  whether  they  are  navigable  or  not  depends  entirely  upon 
their  capacity  for  a  substantial  use  for  that  purpose.^ 

§  47.  Ponds. — Ponds  are  of  two  kinds,  natural  and  artificial. 
A  natural  pond  has  all  of  the  characteristics  of  a  small  lake, 
and  the  terms  "  lake  "or  "  pond  "  are  frequently  used  inter- 
changeably. But  the  word  pond  is  at  best  indefinite.  It 
may  mean  a  natural  or  an  artificial  body  of  water,  constructed 
for  any  purpose,  either  permanent  or  temporary.  In  both 
cases  the  limits  of  such  bodies  of  water  may  vary  at  different 
times  and  seasons,  bj^  use  or  b}^  natural  causes. ^ 


I20  111.,  509;  Atwood  vs.  Caiiaii- 
daigua,  56  Hun.,  293;  Smith  vs. 
Rochester  92  N.  Y.,  463;  Smith  vs. 
York,  by  statute,  the  State's  title 
to  its  navigable  waters  is  in  trust 
for  the  owners  of  the  upland  as 
well  as  for  the  public,  and  the 
State  can  only  convey  the  soil 
under  such  water,  whether  they 
are  lakes  or  tide-waters,  to  the 
owner  of  the  adjoining  land.  Rum- 
sey  vs.  N.  Y.  Ry.  Co.  114  N.  Y., 
423;  Right  vs.  Eldred  46  Hun., 
12.  In  Cobb  vs.  Davenport  32  N. 
J.  L/.,  369,  380,  it  was  held  that  the 
soil  under  the  waters  of  fresh 
water  lakes  within  the  State  of 
New  Jersey,  is  in  the  riparian  pro- 
prietors, and  not  in  the  State.  In 
Pennsylvania  a  pond  is  not  a  "pri- 
vate pond  "  which  covers  the  soil 
of  a  person  who  stocks  it  with  fish 
and  also  the  soil  of  others.  It  is  an 
entirety,  and  the  whole  or  none  is 
private.  Rejmolds  vs.  Common- 
wealth 93  Penu.  St,,  458.    See  also 


Heath  vs.  Williams  43  Am.,  Dec. 
269  and  note. 

1  The  title  to  the  bed  of  the 
river,  lake  or  sound  in  such  cases, 
and  all  special  privileges  and  ad- 
vantages incident  thereto  may  vest 
and  remain  in  the  owner  thereof, 
subject  onl)'  to  their  public  right 
of  navigation.  He  may  use  the 
land  and  whatever  is  incident  to 
it,  including  the  water  over  it  in 
such  lawful  ways  as  he  will,  if  in 
so  doing  he  does  not  impede  or 
interfere  with  navigation.  The 
limited  right  of  the  public  is  para- 
mount and  must  not  be  abridged. 
State  vs.  Narrows  Island  Club, 
100  N.  C,  477;  6  Am.  St.  Rep., 
618;  Broadax  vs.  Baker,  94  N.  C, 
678;  55  Am.  Rep.,  655;  Hodges  vs. 
Williams,  95  N.  C,  331;  59  Am. 
Rep.,  242,  distinguishing  State  vs. 
Glenn,  7  Jones  (N.  C.)  321;  Gould 
on  Waters  sections  86,  87,  90,  no. 
2  Waterman  vs.  Johnson,  13  Pick. 
261.  Pond:  A  body  of  stagnant 
water;  a  pool.    Bouvier's  Law  Die. 


§  48.]  CLASSIFICATION    OF    WATERS.  69 

§  48.  Subterranean  or  Underj^ronnd  Water-Coui-ses.— Sub- 
terranean or  underground  water-courses  are,  as  their  names 
indicate,  those  water  currents  that  flow  under  the  surface  of 
the  earth.  A  large  portion  of  the  great  plains  and  valleys  of 
the  mountainous  regions  of  the  west  is  underlaid  by  a 
stratum  of  water-bearing  sand  and  gravel,  and  fed  by  the 
water  from  the  mountain  drainage.  This  water-bearing 
stratum  is  of  great  thickness,  the  water  is  moving  freely 
through  it,  is  practically  inexhaustible,  and,  if  it  can  be 
brought  to  the  surface,  will  irrigate  a  large  portion  of  the 
countr>'  overlying  it.  In  and  near  the  mountains  many 
streams  have  a  bed  which  was  originally  a  rock}^  canyon,  but 
has  been  filled  up  with  boulders  and  coarse  gravel.  In  this 
debris  a  large  portion  or  all  of  the  water  sinks  from  sight, 
to  reappear  only  when  some  rocky  reef  crosses  the  channel  and 
forces  the  water  to  the  surface.  The  movement  of  this  water 
through  the  porous  gravel,  owing  to  the  declivity  of  the 
stream,  is  often  quite  rapid,  and  a  considerable  volume  may 
thus  pass  down  the  channel  hidden  from  sight. 

These  water-courses  are  divided  into  two  distincf  classes; 
those  whose  channels  are  known  or  defined,  and  those 
unknown  and  undefined.  It  is  necessary  to  bear  this 
distinction  in  mind  in  our  discussion,  as  they  are  governed 
by  entirely  different  principles  of  law.  And  in  this  connec- 
tion it  will  be  well  to  say  that  the  word  "  defined  "  means  a 
contracted  and  bounded  channel,  tliough  the  course  of  the 
stream  may  be  undefined  by  human  knowledge;  and  the 
word  "known"  refers  to  knowledge  of  the  course  of  the 
stream  by  reasonable  inference.^  Regarding  the  laws 
governing  these  two  classes,  it  must  be  known  that  if  under- 
ground currents  of  water  flow  in  well  defined  and  known 
channels,  the  course  of  which  can  be  distinctly  traced, 
they  are  governed  by  the  same  rules  of  law  that  govern 
streams  flowing  upon  the  surface  of  the  earth. '-^ 

•  Hlack  vs.    Ballyniera    Commis-  -  Dickinson  vs.   Ciraiid   Jnnction 

sioners,  17  L.  R.  Ir.  456;  Roalli  vs.  Can.  Co.,  7  ICxch.  2S2;  Chaseniore 

Driscoll,  20  Conn.  533;  IJrown  vs.  vs.    Richards,    2    Hurl.   &   N.    186; 

Illius,  25  Conn.  594;  Haldeinan  vs.  Cole  S.  M.  Co.  vs.  Vir^^inia  W.  Co., 

Bruckhart,  45  I'enn.  St.  51S.  i  vSawycr  470;  vSniilh  vs.  Adams,  6 


70  CLASSIFICATION    OF    WATERS.  [§  48,  49. 

The  owner  of  land  under  which  a  stream  flows  can,  there- 
fore, maintain  an  action  for  the  diversion  of  it  if  such 
diversion  takes  place  under  the  same  circumstances  as  would 
enable  him  to  recover  if  the  stream  had  been  wholly  above 
ground.  But  for  this  purpose  the  underground  water  must 
flow  in  known  and  well  defined  channels,  so  as  to  con- 
stitute regular  and  constant  streams,  in  order  that  the 
riparian  owner  or  appropriator  may  invoke  the  same  rules  as 
are  applied  to  surface  streams,  or  otherwise  the  presump- 
tion will  be  that  they  have  their  sources  in  the  ordinary 
percolations  through  the  soil.^  This  rule  practically  disposes 
of  the  second  class  of  subterranean  waters, — those  whose 
channels  are  unknown  and  undefined — although  there  are 
undoubtedly  a  great  many  underground  streams  whose  waters 
flow  in  confined  channels  but  whose  courses  are  not  known, 
and  following  the  above  rule,  these  are  all  classed  with 
percolating  waters. 

§  49.  Percolating  Waters. — Percolating  waters  are  those 
which  pass  through  the  ground  beneath  the  surface  without 
definite  channels,  although  the  same  rules  of  law  govern  those 
which  have  definite  channels,  but  the  course  of  which  is 
unknown  and  unascertainable.^    Where   there    is   nothing   to 

Paige  435;  Wheatley  vs.  Baugli,  25  build  as  high  as  he  please,  and 
Peun.  St.  528;  Whetstone  vs.  Bow-  hence  the  waters  were  not  gov- 
ser,  29  Penn.  St.  59;  Saddler  vs.  erned  by  the  same  laws  that  per- 
Lee,  66  Georgia  45;  42  Am.  Rep.  tained  to  running  streams.  No 
62;  Action  vs.  Blundell,  12  Mees.  distinction  exists  between  waters 
&  W.  324;  Haldeman  vs.  Bruck-  running  under  the  surface,  in  de- 
hart,  45  Penn.  St.  514;  Hanson  vs.  fined  channels,  and  those  running 
McCue,  42  Cal.  303  ;  Hale  vs.  in  distinct  channels  upon  the  sur- 
McLea,  53  Cal.  578-  face.  The  distinction  is  made 
In  the  case  of  Strait  vs.  Brown,  between  all  waters  running  in  dis- 
16  Nev.  317,  the  Court  held  that  the  tinct  channels  whether  upon  the 
distinction  between  running  water  surface  or  subterranean,  and  those 
and  water  percolating  through  oozing  or  percolating  through  the 
the  soil  was  that  percolating  waters  soil  in  varying  quantities  and  un- 
were  a  part  of  the  soil,  and  upon  certain  directions, 
the  principle  that  the  owner  has  1  Ibid;  Hanson  vs.  McCue,  42 
the  land,  even   to  the  sky  and  to  Cal.  303. 

the  lowest  depths,  the  courts  have  2  wheatley  vs.  Baugh,   25   Penu. 

permitted  him  to  dig  as  deep  and  528. 


§49.] 


CLASSIFICATION    OF    WATERS. 


71 


show  that  the  waters  of  a  spring  or  well  are  supplied  by  any- 
defined  flowing  stream  the  presumption  will  be  that  they 
have  their  source  in  the  ordinary  percolations  of  water  through 
the  soil.^  Percolating  waters,  and  those  whose  sources  are 
unknown,  belong  to  the  realty  in  which  it  is  found. '^  The 
reason  for  this  rule  is  that,  as  percolations  spread  themselves 
in  every  direction  through  the  earth  it  is  impossible  to  avoid 
disturbing  them  without  relinquishing  the  necessary  enjoy- 
ment of  the  land  the  law  does  not  therefore  forbid  their 
disturbance.^ 


1  Hanson  vs.  McCue,  42  Cal.  303. 

2  Mosier  vs.  Caldwell,  7  Nev. 
363;  Wheatley  vs.  Baugh,  25  Penn. 
St.,  528;  64  Am.  Dec.  and  note; 
Chasemore  vs.  Richards,  7  H.  L. 
Cas.,  349;  Dickinson  vs.  Grand 
June.  Canal  Co.,  7  Exch.  282; 
Action  vs.  Blundell,  12  Mees.  & 
W.,  324;  Taylor  vs.  Welch,  6  Ore., 
198;  Hammond  vs.  Hall,  10  Sim., 
552;  Chase  vs.  Silverstone,  62  Me., 
175:  Taylor  vs.  Fickas,  64  Ind.,  167, 


Delhi  vs.  Youmans,  45  N.  Y.,  362; 
5  Barb.,  316;  Colmanvs.  Chadwick, 
80  Penn.  St.,  81 ;  Trout  vs.  McDon- 
ald, 83  Penn.  St.,  126;  Frazier  vs. 
Brown,  12  Ohio  St.,  294;  Chatfield 
vs.  Wilson,  28  Vt.,  49:  Emporia 
vs.  Soden,  25  Kan.,  608,  612. 

3  Ibid;  Colman  vs.  Chadwick,  80 
Penn.  St.,  81;  Angell  on  Water- 
courses, §  109;  2  Am.  I^.  Reg.  65; 
3  Am.  L.  Reg.,  223;  Post  sees. 
298,  299,  cases  cited. 


CHAPTER  III. 
The  Common  Law  Tlieories. 


Sections— 

50.  Nature  and  extent  of  subject 

treated. 

51.  Tide  waters. 

52.  Property   in    fresh    water    or 

private  streams  and  rivers. 

53.  Same — Fresh  v/ater  navigable 

rivers.     Rule  in  England. 

54.  Same — Same  —  Rule    in    the 

United  States. 

Same — Same  —  United  States 
Survey. 

Nature  of  ownership  in  a  water 
course. 

Rights  of  riparian  proprietors 
in  general. 

Same — Continued. 

Same — Right  to  natural  flow 
of  water. 

Right  of  diversion.  Authori- 
ties. 

Riparian  rights — Obstructing 
flow. — Accelleration  of  cur- 
rent. 

Riparian  rights. — Pollution  of 
a  watercourse. 

63.  Right  to  flow  of  whole  stream. 

64.  Right  of  access  to  and  from 

estate. 

65.  Right  of  riparian  owner  to  the 

use  of  water. — In  general. 

66.  Ordinary  use  of  water. 

67.  Same — Extraordinary    use    of 

water. 

Same — Use  of  water  for  irri- 
gation. 

Same — Same. 

Same — English  doctrine. 


55- 

56. 

57- 

58. 
59- 

60. 
61. 


62 


68 


69. 
70. 


Sections.— 

71.  Same — Continued. 

72.  Same — Early   American   doc- 

trine. 

73.  Same — Later    American    doc- 

trines.— Authorities  discus- 
sed. 

74.  Same  —  Chancellor     Kent's 

opinion. 

75.  California  construction  of 

above. — Conclusions. 

76.  Same — "Reasonable  use"  dis- 

cussed. 

77.  Same — Conclusion. 

78.  Same— Diversion  of  subterra- 

nean waters. 

79.  Same — Authorities  discussed. 

80.  Priority   of    appropriation    at 

common  law. 

81.  Same — Authorities   discussed. 

82.  Accretions  and  relictions. 

83.  Same — Fishery. 

84.  Same — Authorities   discussed. 

85.  Other  miscellaneous  riparian 

rights. 

86.  Lakes  and  ponds,  property  in. 

87.  Same — Rule   in   the  United 

States. 

88.  Same — Riparian    rights    con- 

cerning. 

89.  Public  grants. 

90.  Private  grants . 

91.  Same — Continued. 

92.  Prescription. 

93.  License. 

94.  Eminent  domain. 

95.  Summary. 


§  50,  51.]  COMMON    LAW    THEORIES.  73 

§  50.  Nature  and  extent  of  Subject  Treated.— It  is  not  the 

intent  of  the  present  work  to  enter  into  an  extended  discussion 
of  all  the  Common  Law  Theories  upon  the  subject  of  waters 
and  water-courses,  but  simply  to  go  so  far  as  to  show  how  far 
the  Common  Law  is  applicable,  or  rather  inapplicable,  to  the 
subject  of  irrigation  in  the  States  and  Territories  of  the  Arid 
Region  of  the  West. 


§  51.  Tide  Waters. — At  common  law  the  bed  and  soil  of 
all  rivers  subject  to  the  ebb  and  flow  of  the  tide,  to  the  extent 
of  such  ebb  and  flow,  belongs  to  the  Crown  or  Public.  This 
is  the  present  law  of  England.^  They  are  the  arms  of  the 
sea,  and  the  King  has  them  because  they  partake  of  its 
nature.  This  ownership  is  for  public  benefit,  and  in  this 
country  each  State  as  sovereign  has  succeeded  to  the  right 
which  the  King  formerly  possessed  in  such  rivers  and  in  the 
soil  beneath. 2  Mr.  Gould  in  his  work  on  waters  says  upon 
this  subject :3  "At  the  time  of  the  Revolution  when  the 
people  became  sovereign  the  respective  States  succeeded  to 
the  title  of  the  Crown  in  the  tide  waters  within  their  territorial 
limits,  and  to  such  rights  therein  as  has  been  previously 
granted  to  the  local  governments  established  under  the  royal 
sanction.  Public  rights  in  navigable  waters  were  not  affected 
or  impaired  by  this  change  of  title,  and  the  powers  acquired 
by  the  States  were  those  which  in  England,  and  in  this 
country  previous  to  the  Revolution,  could  have  been  exercised 
by  the  King  alone,  or  by  him  in  conjunction  with  Parlia- 
ment."^ 


1  Gould  on  waters,  sections  4,  5.  3  Gould   on    waters,  section   32, 
10,    and    cases   cited;    Regina   vs.  cases  cited. 

Keyn,2  Ex.  D.,63;  Royal  Fishery  '  Howard  vs.  Ingersoll,  13  How- 

of  the  Banne,  vSirJohn  Davis,  149;  ard,  381,  431;  Pollard  vs.   Hagan, 

Bulstrode  vs.  Hall,  vSid.,  149;  Fitz-  3   How.,    212.       In    which    the 

waiters   Case,    i    Mod.,    105;   Col-  .Supreme  Court  of  theUnitedStates 

Chester  vs.  Brooke,  7  Q.  B.,  339;   i  .said:  The  "  .State's  rights  of  sover- 

Black.  Com.,  264.  eignty    and    jurisdiction    are    not 

2  Martin   vs.  Wadell,   16  Peters,  governed  by  the  Common  Law  of 
367.  l^ngland    as    it   prevailed    in    the 


74 


COMMON    LAW    THEORIES. 


[§52. 


§  52.  Property  in  Fresh  Water  or  Private  Streams  and 
Rivers. — Fresh  water  streams  which  are  not  a  common 
passage  way  are  private  property,  and  the  title  to  the  bed  of 
the  river,  ad  Jiliim  aquae,  is  in  the  proprietors  of  the  banks 
bordering  upon  the  streams, in  severalty  and  not  in  common, ^ 
This  is  true  whether  their  tenure  is  freehold,  copy  hold  or 
lease  hold.^  And  if  the  banks  on  both  sides  of  the  stream  are 
owned  by  the  same  person  he  owns  the  whole  of  the  bed,  accord- 
ing to  the  extent  of  his  lands  in  length.  If,  however,  his 
land  is  bounded  by  the  stream  he  owns  to  the  thread  of  the 
same;  or  as  it  is  termed  in  common  law,  ad  filum  aquae r" 
unless  from  prior  grants  from  himself,  his  vendors,  or  the 
State,  before  his  land  became  private  property,  such  a 
construction  can  be  negatived.^  There  is  but  one  difiference 
between  a  stream  running  through  a  man's  land,  and  one  that 


colonies  before  the  Revolution, 
but  as  modified  by  our  own. con- 
stitutions." 

1  Gould  on  Waters,  Section  46, 
and  cases  cited;  Rex  vs.  Wharton, 
Holt  499;  12  Mod.,  510;  Devonshire 
vs.  Pattinson,  20  Q.  B.  D.,  263; 
Tyler  vs.  Wilkinson,  4  Mason's 
Cir.  Ct.,  397;  Hay  vs.  vSterritt,  2 
Watts,  327;  Ball  vs.  Slack,  2  Whar- 
ton (Pa.),  508;  25  Cent.  L.  J.,  539, 
and  cases  cited  in  notes;  Hatch  vs. 
Dwight,  17  Mass.,  2S9;  Mead  vs. 
Haynes,  3  Rand,  33;  Morrison  vs. 
Keene,  3  Greenl,  474;  Middleton 
vs.  Pritchard,  3  Scam.,  510;  Jones 
vs.  Soulard,  24  How.,  41;  in  which 
the  Court  held  that  a  riparian 
proprietor  upon  .the  Mississippi 
was  entitled  to  all  the  accretions 
as  far  out  as  the  middle  of  the 
stream;  Canal  Corn's  vs.  People, 
5  Wend.,  423;  People  vs.  Canal 
Appraisers,  13  Wend.,  358;  King 
vs.  King,  7  Mass.,  496;  Lunt  vs. 
Holland,  14  Mass.,  149;  Coovert  vs. 
O'Conner,  8   Watts,  470;  Hoh-oke 


Watei  Power  Co.,  vs.  Lyman,  15 
Wall.,  500;  Stolp  vs.  Hoyt,  44  111., 
219;  Berry  vs.  Snyder,  3  Bush,  266. 

2  Gould  on  W^aters,  Section  46, 
Tilbury  vs.  Silva,  45  Ch.  D.,  98. 

3  Ibid.  Tyler  vs.  Wilkinson,  4 
Mason's  Cir.  Ct.,  397;  Hay  vs. 
Sterritt,  2  Watts,  327;  2  Cooley's 
Blackstone  18,  and  note  3;  Angell 
on  Water  Courses,  Sec.  10;  Lord 
Hale's  Treatise,  De  Jure  Maris; 
The  Latin  term,  ad  filiiin  aquae, 
is  defined  by  Bouvier,  as  meaning, 
"  To  the  thread  of  the  stream;  to 
the  middle  of  the  stream."  The 
word  thread  is  defined  by  Johnson 
"  a  small  line,  any  thing  continued 
in  course,"  Jones  vs.  Soulard,  24 
How.,  41;  Wadsworth  vs.  Smith, 
II  Maine,  278,  281;  in  which  the 
Court  said:  "If  a  man  be  owner 
of  the  land  on  both  sides  of  the 
stream  or  river,  in  common  pre- 
sumption he  is  the  owner  of  the 
whole  river." 

1  Hatch  vs.  Dwight,  17  Mass., 
289. 


§  52,  53.] 


COMMON    LAW   THEORIES. 


75 


ruus  by  the  side  of  it  ;  in  the  former  case  he  owns  the  whole 
of  the  bed,  and  in  the  latter  but  half.^ 

§  53.  Same— Fresh  Water  Navigable  Rivers.— Rule  in 
Englund. — Upon  an  examination  it  will  be  found  that  with 
respect  to  the  property  in  large  rivers,  which  being  navigable 
in  fact  resemble  tidal  rivers,  and  being  fresh  partake  of  the 
nature  of  small  unnavigable  streams,  there  is  a  great  conflict 
of  both  the  early  and  more  recent  authorities  as  to  whether 
the  river  is  to  be  held  as  private  property  or  belonging  to  the 
Crown,  State  or  Public.^  Bracton,  the  Chief  Justice  of 
England  in  the  reign  of  Henry  III,  and  one  of  the  earliest 
writers  upon  this  subject,  says  that  "all  rivers  are  public,  and 
that  the  Crown  or  Public  has  the  right  of  fishing  therein  and 
the  use  of  the  banks. ' '  He  makes  no  distinction  between  those 
rivers  which  are  navigable  in  fact  and  those  which  are  not.^ 
It  is  charged  that  Bracton  follows  the  civil  law,  but  from 
whatever  source  this  theory  comes  it  is  not  the  modern 
law  rule,**  which  is,  as  was  held  in  the  case  of  Murphy  vs. 
Ryan,^  that,  beyond  the  point  to  which  the  tide  ebbs  and 
flows,  even  in  a  river  actually  navigable  and  so  used  by  the 


1  Starr  vs.  Child,  20  Wend.,  149; 
in  wbicli  Mr.  Justice  Cowan  in 
construing  the  terms  used  in  a 
deed  said:  "But  suppose  we  ex- 
punge the  words  to  the  river,  and 
take  the  shores  as  the  boundary; 
the  grantees  become  the  proprie- 
tors of  the  shore  which  when 
applied  to  a  fresh  water  river 
means  the  bank." 

Johnson's  Dictionary, 5'//or^  and 
Bank,  signifies  the  earth  aris- 
ing on  each  side  of  the  water.  Id. 
Bank.  *  *  *  "The  bank  and 
the  water  are  co-relative.  YoU 
cannot  own  one  without  touching 
the  other.  But  the  bank  is  the 
principal  object;  and  when  the 
law  once  fixes  the  proprietorship 
of     that,     the    soil    (jf    the     river 


follows  as  an  incident,  or  rather  as 
a  part  of  the  subject  matter 
usque filtitn  aquae y  *  *  *  "It 
is  true  that  parts  of  the  thing  may 
be  excluded  or  excepted  from  the 
grant,  or  it  may  exist  in  separate 
bonds  b}-  prescription,  or  they 
may  be  granted  by  some  together 
with  the  land;  but  in  no  case  does 
the  mere  omission  to  mention 
them  operate  as  an  exclusion.^'' 
See  also  ex  parte  Jennings  6 
Cowan,  543,  551  and  authorities 
cited. 

-  (jould    on    Waters,   Sec.  46-79. 

•'  I   Ld.  Kaym.   726;  6  Mod.  163; 
Bracton,  Lib.  i  Ch.  12,  pp.  7  and  8. 

1  Gould,  Sec.  47;  Angell,  vSec.  551; 
See  Just  Inst.  L.  2  tit.  Is.  4. 

•>Ir.  R.  2  C.  L.  T43. 


76  COMMON    LAW   THEORIES.  [§  53,  54. 

public,  the  soil  is  prima  facie  in  the  riparian  proprietors. 
And  the  English  law  has  become  settled  in  accordance  with 
this  view,  that  the  title  of  the  riparian  owners  extends  to  the 
center  of  all  non-tidal  streams,  whether  the  same  are  actually 
navigable  or  not;^  but  this  title  is  subject  to  the  general  right 
of  navigation  of  the  public.  In  respect  to  this  right,  the 
common  law  authorities  also  differ,  as  to  whether  prescription 
is  the  ground  upon  which  the  right  of  navigation  in  these 
waters  depends,^  or  whether  all  tidal  and  fresh  rivers  which 
are  navigable  in  fact  are  common  highways  and  prima  facie 
p2iblici  juris. ^  But  from  whatever  source  the  right  of  the 
public  to  navigation  is  derived,  this  may  be  stated  as  the 
common  law  rule,  that  all  rivers  entirely  above  the  influence 
of  the  tide,  if  they  are  so  large  as  to  be  navigable  in  fact, 
for  the  passage  of  vessels  and  boats,  are,  as  well  as  the  tidal 
rivers,  under  the  servitude  of  the  public  interest,  and  the 
public  have  the  paramount  right  to  use  the  same  as  highways."* 

§64.  Same— Same— Rule  in  the  Uiiiteil  States.— In  this 
country  the  modern  common  law  rule  relative  to  the  ownership 
of  fresh  water  navigable  rivers  has  been  followed  as  the  law 

I  Price  vs.  Scotcher,  g  Q.  B.  D.  3  App.  Cas.  641,  666;    Bloomfield 

162;  Tilbury  vs.  Silva,  45  Cb.  D.  vs.  Johnson,    Ir.    R.   8,  C.   L.  68; 

98:    Orr  Ewing  vs.  Colquhoun,  2  Devonshire  vs.  Pattison,  20  O.  B. 

App.  Cas.  839;  Dwyervs.  Rich,  Ir.  D.  263. 

4,  C.    L.    424;    Miller    vs.     Little,  2  King  vs.   Montigue,4B.  &  C. 

2  L.  R.   Ir.  304;    Lord  Hale,    De  598:    Hargreave   vs.   Diddams,   L. 

Jure  Maris  et  Portibus.  In  the  case  R.  10  O.  B.  582;  Coulson  &  Forbes 

of  Bath  River  Navigation  Co.  vs.  on  Waters  Sees.  92,  93,  94. 

Willis,  2  Cases  of  Ry.  &  Canals  7,  :^  Hale   De  Jure  Maris,   Ch.   i,  2, 

where  an  act  of  Parliament  had  3;  Hargreaves  Law  Tracts,  6,  8,  9; 

been  passed,   authorizing   certain  Williams  vs.  Wilcox,  8  Ad.  &  El. 

persons  to  use  a  certain  part  of  the  314,  332. 

River  Avon  for  navigation,  and  to  ^  Royal  Fishery  of  River  Banne, 

use  the  banks  as  towing  paths,  the  Davies  R.  149;  Lord  Hale  explains 

Court  held  that  satisfaction  should  this  question  in  his  De  Jure  Maris, 

first  be  given  to  the  owners  of  the  as   follows:    that  all   rivers  above 

land  abutting  on  the  river.     Also  the   tidal   point,   are   regarded    as 

see  Ball  vs.  Herbert,  3  T.   R.   253;  public,    not   in    reference    to    the 

Hargreaves  vs.  Diddams,  L.  R.  10  property  in  the  soil  or  the  bed  of 

Q.  B.  582;    Bristow  vs.  Cormican,  the  river,  but  only  in  reference  to 


§  54.] 


COMMON    LAW   THEORIES 


77 


of  many  of  the  States,  the  State  succeeding  to  the  right  of  the 
Crown,  and  the  riparian  owners  owning  the  soil  to  the  center 
of  the  stream.^  In  general  this  rule  is  in  force  in  all  of  the 
New  England  States,  where  the  rivers  of  this  class  are  com- 
paratively unimportant,  and  navigable  non-tidal  rivers  are 
private  p^opert^^'■^ 


public  use  for  navigation.  Thus, 
the  riparian  proprietors  have 
title  to  the  bed  of  the  rivers, 
and  the  rights  of  fishery  in  rivers 
of  this  class,  subject  to  this  right 
of  navigation.  Gould,  Chapter 
IV;  Colchester  vs.  Brooks,  7  Q  B. 
339;  Callis  on  Sewers,  78,  and 
cases  above  cited. 

1  Ingraham  vs.  Wilkinson,  4  Pick. 
268;  Consumers  Canal  Fund  vs. 
Keniphall,  26  Wend  404;  Brown 
vs.  Chadbourne,  31  Me.  9;  Adams 
vs.  Pease,  2  Conn.  481;  Common- 
wealth vs.  Alger,  7  Cush.  53;  Wal- 
ker vs.  Board  of  Public  W'ks,  16 
Ohio  540;  Barnes  vs. City  of  Racine, 
4  Wis.  486. 

2  Connecticnf. — Adams  vs.  Pease, 
2  Conn.  481;  Bissell  vs.Southworth, 
I  Root.  269 ;  Worner  vs.  South- 
worth,  6  Conn.  471;  Chapman  vs. 
Kimball,  9  Conn.  38,  41;  Knfield 
Bridge  Co.  vs.  Hartford  Ry.  Co., 
17  Conn.  40;  Mill  River  Woolen 
Mfg.  Co.  vs.  Smith,  34  Conn.  463. 
New  Hampshire. — Scott  vs.  Wil- 
son, 3  N.  H.  321;  Claremont  vs. 
Carlton,  2  N.  H.  369,  Rix  vs. 
Johnson,  5  N.  H.  520;  Norway 
Plains  Co.  vs.  Bradley,  52  N.  H. 
86;  State  vs.  Gilmantbn,  9  N.  H. 
461;  14  N.  H.  467;  Greenleaf  vs. 
Kilton,  II  N.  H.  530;  vState  vs. 
Canterbury,  28  N.  H.  195,  216; 
Boscawan  vs.  Canterbury,  23  N. 
H.  199:  The  limits  of  towns  on  a 
stream  extend  to  the  center  there- 


of. Nicholls  vs.  Suncock  Mfg.  Co., 
34  N.  H.  345;  Kimball  vs.  Schaff; 
40  N.  H.  190;  Clement  vs.  Burns; 
43  N.H.  609;  Thompson  vs.  Andros- 
coggin Co.,  54  N.  II.  548;  58  N.  H. 
108;  Carter  vs.  Thuston,  58  N. 
H.  104.  VcrinoJit. — Fletcher  vs. 
Phelps,  28  Vt.  257,  262;  Newton 
vs.  Eddy,  23  Vt.  319.  Maine. — 
Pejepsco  Proprietors  vs.  Cushman, 
2  Me.  94;  Berry  vs.  Carle,  3  Me. 
269;  Morrisoji  vs.  Keene,  3  Me. 
474;  Lincoln  vs.  Wilder,  29  Me. 
169;  Spring  vs.  Russell,  7  Me.  273; 
Simpson  vs.  Seavey,  8  Me.  128; 
Wadsworth  vs.  Smith,  11  Me.  278; 
26  Am.  Dec.  525;  Nickerson  vs. 
Crawford,  16  Me.  245;  Brown  vs. 
Chadbourne,  31  Me.  9;  50  Am. 
Dec.  641;  Knox  vs.  Chaloner,  42 
Me.  150;  Moor  vs.  Veazie,  32  Me. 
343;  31  Me.  360;  14  How.  568; 
Bradford  vs.  Creesey,  45  Me.  9; 
Strout  vs.  Millbridge  Co.,  45  Me. 
76;  Veazie  vs.  Diurnell,  50  Me. 
479,  484.  In  Granger  vs.  Avery,  64 
Me.  292,  the  Court  held  that  the 
owner  of  lands  on  both  sides  of  a 
river,  above  tide  water,  owned 
also  the  islands  therein.  See  also 
Holden  vs.  Robinson  Mfg.,  65  Me. 
215.  Rhode  Island. — Hughes  vs. 
Providence  Railroad  Co.,  2  R.  I. 
508,  512;  Olney  vs.  Fenner,  2  R.  I. 
211,  214.  Afassachuscfis. —  Ty\cx 
vs.  Wilkinson,  4  Mason.  397;  King 
vs.  King,  7  Mass.  496;  Stover  vs. 
Freeman,  5  Mass.  435,  438;  4  Am. 


78 


COMMON    LAW   THEORIES. 


[§54, 


The  English  rule  is  also  adopted  in  New  Jersey,  Delaware, 
Maryland,  Georgia,  and  in  Michigan  and  Wisconsin,  except 
as  to  streams  included  in  the  original  United  States  Survey, 
and  then  the  owners  of  the  adjacent  lands  take  at  least  to  the 
waters  edge,  subject  always  to  the  public  right  of  navigation.^ 


Dec.  155;  Hatch  vs.  Dwight,  17 
Mass.  289,  298;  9  Am.  Dec.  145; 
Ingrahani  vs.  Wilkinson,  4  Pick. 
268;  16  Am.  Dec.  342;  Common- 
wealth vs.  Chapin,  5  Pick.  199; 
Waterman  vs.  Johnson,  13  Pick. 
261,  265;  Bardswell  vs.  Ames,  22 
Pick.  333,  354;  Hopkins  Academy 
vs.  Dickinson,  9  Cush.  544,  547; 
Commonwealth  vs.  Alger,  7  Cush. 
53.  9">  97!  McFarlin  vs.  Essex  Co., 
10  Cush.  304,  309;  Blood  vs.  Nashua 
Railroad  Co.,  2  Grey.  137,  139;  61 
Am.  Dec.  444;  Barton  vs.  Richard- 
son, 13  Allen.  146,  154;  Common- 
wealth vs.  Vincent,  108  Mass.  441, 
447;  Knight  vs.  Nelder,  2  Cush. 
199;  48  Am.  Dec.  660. 

1  Railroad  vs. Schurmeir, 7  Wall., 
272;  Middleton  vs.  Prichard,  3 
Scammon,  510;  Wright  vs.  Day, 
33  Wis.,  260;  Delaphine  vs.  Chi- 
cago Ry.  Co.,  42  Wis.,  214.  Neiv 
Jersey. — Arnold  vs.  Mundy,  6  N. 
J.  L.  I;  10  Am.  Dec.  356,  385  note; 
Gough  vs.  Bell,  2  Zab.,  441;  Atty. 
Gen.  vs.  Delaware  Ry.  Co.,  27  N. 
J.  Eq.,  18,  631;  Bell  vs.  Gough,  3 
Zab.,  624;  Martin  vs.  Wadell,  3 
Harr.,  495;  16  Peters,  367;  Rundall 
vs.  Delaware  Canal  Co.,  i  Wall., 
Jr.,  275;  Atty.  Gen.  vs.  Dela- 
ware Ry.  Co.,  27  N.  J.,  Eq. 
I,  631;  Society  vs.  Low  17  N.  J. 
Eq.,  19;  Cobb  vs.  Davenport,  32 
N.  J.,  369;.  Delaware. — Delaney 
vs.  Boston,  2  Harr.,  (Del.)  489; 
Bickell  vs.  Polk,  5  Id.,  325.  il/ary- 
/a«fi?.  —  Ridgley  vs.  Johnson,  i 
Bland  Ch.,  316,  note;  Baltimore  vs. 


McKim,  3  Id.,  453;  Brown  vs. 
Kennedy,  5  H.  &  J.,  196,  205; 
Binneys  Case,  2  Id.,  99;  Casey  vs. 
Ingloes.  I  Gill,  430;  Day  vs.  Day, 
22  Md.,  530,  537;  Goodsell  vs.  Law- 
son,  42  Md.,  348;  Chapman  vs. 
Haskins,  2  Md.  Ch.,  485.  Georgia. 
— Young  vs.  Harrison,  6  Ga.,  130 
141;  Jones  vs.  Waterlot  Co.,  18 
Ga.,  539;  Stanford  vs.  Mangin,  30 
Ga.,  355;  Hendrick  vs.  Cook,  4 
Ga.,  241. 

But  in  some  of  the  above  cases, 
it  does  not  seem  clear  whether  the 
term,  "navigable"  is  used  in  its 
common  law  sense,  or  not.  Navi- 
gable waters  have  been  the  sub- 
ject of  considerable  legislative  en- 
actments in  this  state.  See  code 
1882,  section  2229,  see  also  Moses 
vs.  Eagle  Mfg.  Co.,  62  Ga.,  455. 

Michigan. — Lornian  vs.  Ben- 
son, 8  Mich.,  18;  77  Am.  Dec, 
435;  Moore  vs.  Sanborne,  2  Mich., 
519;  59  Am.  Dec,  209;  Norris  vs. 
Hill,  I  Mich.,  202;  Ryan  vs.  Brown, 

18  Mich.,  196;  Clark  vs.  Campau, 

19  Mich.,  325;  Watson  vs.  Peters, 
26  Mich.,  508;  Bay  City  Gas  Light 
Co.  vs.  Industrial  Works,  28  Mich., 
182;  Grand  Rapids  Booming  Co. 
vs.  Jarvis,  30  Mich.,  308;  Thunder 
Bay  B.  Co.  vs.  Speechly,  31  Mich., 
336;  Maxwell  vs.  Bay  Citj'  Bridge 
Co.,  41  Mich.,  453,  466;  Backus  vs. 
Detroit,  49  Mich.,  no;  Lincoln  vs. 
Davis,  53  Mich.,  375;  Jones  vs. 
Lee,  77  Mich.,  35;  Turner  vs.  Hol- 
land, 65  Mich.,  453;  Fletcher  vs. 
Thunder  Bay  B.  Co.,  51  Mich.,  277; 


§54.] 


COMMO^'    LAW   THEORIES. 


79 


The  common  law  rule  is  also  followed  in  Illinois  where 
no  reservation  is  made  by  the  Government.'  Ohio  also 
holds  that  the  owners  of  lands  situated  upon  this  class 
of  streams  own  the  river  beds  subject  to  the  public  right 
of  navigation. 2     But   in    Penns3'lvania,  North  Carolina,  Ten- 


Webber  vs.  Pere  Marquette  Boom. 
Co.,  62  Mich.,  626.  Exception. — 
Twogood  vs.  Hoj-t,  42  Mich.,  609; 
Rice  vs.  Ruddiman,  10  Mich.,  125; 
Pere  Marquette  Boom.  Co.  vs. 
Adams,  44  Mich.,  403;  Ciute  vs. 
Fisher,  65  Mich.,  48. 

But  see  La.  Plaisance  Bay  Har- 
bor Co.  vs.  Monroe,  Walk,  (Mich.) 
155,  where  the  court  held  "  that 
the  beds  of  all  meandered  streams 
and  navigable  waters  belong  to 
the  state,"  which  doctrine  has 
been  overruled,  and  the  doctrine 
of  the  common  law  as  to  owner- 
ship, is  now  the  settled  law  of  the 
state,  see  Lorman  vs.  Benson,  8 
Mich.,  18. 

Wisconsin. — ^Jamison  vs.  Petti- 
bone,  2  Wis.,  308;  Stevens  Point 
Boom.  Co.  vs.  Reilly,  44  Wis.,  295; 
46  Wis.,  237;  Cohn  vs.  Wausau 
Boom  Co.,  47  Wis.,  314;  Walker  vs. 
Shepperdson,  4  Wis.,  486;  2  Wis., 
384;  60  Am.  Dec,  423;  Kimball 
vs.  Kenosha,  4  Wis.,  321;  Cobb  vs. 
Smith,  16  Wis.,  692;  Wood  vs. 
Hustis,  17  Wis.,  429;  Yates  vs. 
Judd,  18  Wis.,  118;  Wis.  R.  Imp. 
Co.  vs.  Lyons  30  Wis.,  61;  Arimond 
vs.  Green  Bay  Co.,  31  Wis.,  316; 
Olson  vs.  Merrill,  42  Wis.,  203 
Diedrich  vs.  N.  W.  Ry.  Co.,  42 
Wis.,  248;  Jonesville  vs.  Carpenter, 
46  N.  W.,  128.  Exceptio7is. — 
Wright  vs.  Day,  33  Wis.,  260; 
Delaphine  vs.  Chi.  Ry.  Co.,  42 
Wis.,  214;  24  Am.  Rep.,  368; 
Menasha  Wooden  Ware  Co.  vs. 
Lawson,  70  Wis.,  600.     Indiana. — 


Stenson  vs.  Butler,  4  Blackf.,  285; 
Gentile  vs.  State,  29  Ind.,  409; 
Gould  on  Waters,  150  note  2;  Ross 
vs.  Faust,  54  Ind.,  471,  475;  23 
Am.  Rep.,  655;  Dawson  vs.  James, 
62  Ind.,  162;  Bainbridge  vs.  Sher- 
lock, 29  Ind.,  364;  95  Am.  Dec. 
644.  It  will  be  seen  from  an  ex- 
amination of  the  above  authorities 
that  in  this  State  the  ownership  of 
the  bed  of  a  fresh  water  navigable 
stream  is  somewhat  in  doubt. 

'^Illinois. — Middleton  vs.  Prich- 
ard,  3  Scam.,  510;  38  Am.  Dec.  112; 
Eusigner  vs.  People,  47  111.,  384; 
95  Am.  Dec,  494;  Canal  Trustees 
vs.  Haven,  5  Gilman,  548;  Chicago 
vs.  McGinn,  51  111.,  266;  2  Am. 
Rep.,  295;  People  vs.  St.  Louis,  5 
Gilman,  351;  Hubbard  vs.  Bell,  54 
111.,  no;  5  Am.  Rep.,  98;  St.  Louis 
vs.  Rutz,  138  U.  S.,  226,  242;  35 
Fed.  Rep.,  188;  Illinois  vs.  111. 
Cent.  Ry.  Co.,  33  Fed.  Rep.,  730; 
Houck  vs.  Yates.  82  111.,  179; 
Washington  Ice  Co.  vs.  Shortall, 
loi  111.,  46;  40  Am.  Rep.,  196.  See 
Gould  section  69  and  148,  note  i, 
and  as  to  system  of  navigation  see 
section  69  note  6.  See  also  Hardin 
vs.  Jordin,  140  U.  S.,  371,  in  which 
the  Court  held:  "  That  it  depends 
upon  the  laws  of  each  State  to 
what  extent  the  prerogative  of  the 
State  to  lands  under  the  water 
shall  extend." 

2Gavit  vs.  Chambers,  3  Ohio, 
496;  Lamb  vs.  Rickets,  11  Ohio, 
311;  Blanchard  vs.  Porter,  11  Ohio, 
138;    Walker  vs.   Board  of  Public 


80 


COMMON    LAW   THEORIES. 


[§  54. 


nessee.Iowa,  Alabama  and  Virginia  it  has  been  determined  that 
the  common  law  does  not  prevail,  and  that  the  ownership  of 
the  bed  or  soil  of  all  rivers  which  are  navigable  in  fact  for 
any  useful  purpose  of  trade  or  agriculture,  whether  tidal  or 
fresh  water,  is  in  the  State. ^  The  ebb  and  flow  of  the  tide 
has  been  held  not  to  be  the  real  test  of  the  navigability  of  a 
river.  If  a  river  be  deep  enough  for  sea  vessels  to  navigate 
to  and  from  the  ocean,  it  is  a  navigable  stream  and  held  to  be 
public,  and  the  boundary  of  the  adjacent  land  is  not  the 
thread  or  middle  of  the  channel,  but  the  edge  of  the  water,  at 
low  water  mark.^ 


Works,  i6  Ohio,  540;  Hickok  vs. 
Hine,  23  Ohio  St.,  523;  13  Am. 
Rep.,  255;  Niehaus  vs.  Shepherd, 
26  Ohio  St.,  40;  Sloan  vs.  Bie- 
railler,  34  Ohio  St.,  492,  512;  Day 
vs.  R.  R.  Co.,  44  Ohio  St.,    406, 

419- 

'i-Petmsylvania.  —  Carson    vs. 

Blazer,  2  Binney,  475;  4  Am.  Dec, 
463;  Cooper  vs.  Smith,  9  S.  &  R., 
26;  Shrunk  vs.  Schuylkill  Nav. 
Co.;  14  S.  &  R. ,  71 ;  Hart  vs.  Hill, 
I  Whart.  124;  Ball  vs.  Slack,  2 
Whart.,  5oy;  3°  Am.  Dec,  278; 
Coovert  vs.  O'Conner,  8  Watts  470; 
Bird  vs.  Smith,  8  Watts.,  434;  34 
Am.  Dec,  483;  Dalrymple  vs. 
Mead,  I  Grants  Cas.,  197;  Zimmer- 
man vs.  Union  Canal  Co.,  I  Watts. 
&  S.,  346;  Jones  vs.  Janney,  8 
Watts.  &  S.,  436,  443;  42  Am.  Dec, 
309;  Bailey  vs.  Miltonberger,  31 
Penn.  St.,  37;  Baker  vs.  Lewis,  33 
Penu.  St.,  301;  Flanigan  vs.  Phila- 
delphia, 42  Penn.  St.,  219;  Monon- 
gahela  Bridge  Co.  vs.  Kirks,  46 
Penn.  St.,  112;  84  Am.  Dec,  527; 
McKeen  vs.  Delaware  Canal  Co., 
4g  Penn.  St.,  424;  Tinacum  Fish- 
ing Co.  vs.  Carter,  61  Penn.  St., 
21;  100  Am.  Dec,  597;  Wainright 
vs.  McCullough,  63  Penn.  St.,  66; 
Zog  vs.  Commonwealth,  70  Penn. 


St.,  138;  Poore  vs.  McClure,  77 
Penn.  St.,  214;  Fisher  vs.  Halde- 
man,  20  How.,  i86;  Simpson  vs. 
Neill,  89  Penn.  St.,  183;  Rundle 
vs.  Del.  Canal  Co.,  14  How.  80; 
Fulmer  vs. Williams,  122  Penn.  St., 
191.  North  Carolina. — Authori- 
ties Conflicting.  —  Wilson  vs. 
Forbes,  2  Dev.,  30;  Ingraham  vs. 
Threadgill,  3  Dev.  59;  Collins  vs. 
Benbury,  3  Ired.,  277,  5  Ired.,  118; 
Smith  vs.  Ingram,  7  Ired.,  175; 
Gillian  vs.  Bird,  8  Ired.,  280,  284; 
P'agan  vs.  Armistead,  11  Ired.  433; 
Lewis  vs.  Keeling,  i  Jones  Law., 
299;  State  vs.  Dibble,  4  Jones,  107; 
Ward  vs.  Ellis,  6  Jones  Law,  183; 
State  vs.  Glen,  7  Jones  Law,  321; 
Cornelius  vs.  Glenn,  7  Jones  Law, 
512;  Skinner  vs.  Hettick,  73  N.  C. 
53;  State  vs.  Pool,  74  N.  C,  402, 
407;  State  vs.  Tomlinson,  77  N.  C. 
528; 

2  State  vs.  jWaddington,  i  Me. 
Cord,  580;  In  State  vs.  Narrow 
Island  Club,  100  N.  C.  477,  481;  the 
Court  said,  in  speaking  of  waters, 
"The  public  right  arises  only  in 
case  of  their  navigability;  whether 
they  are  navigable  or  not,  depends 
upon  their  capacity  for  substan- 
tial use,  as  indicated.  They  can  be 
so  used   for   the   free  passage  of 


§54.j 


COMMON    LAW    THEORIES. 


81 


In  the  following  States  the  authorities  are  divided  upon  the 
subject.  In  New  York  the  earlier  decisions  hold  that  the 
common  law  rule  does  not  apply  •}  but  the  later  decisions  adopt 


vessels;  the  public  have  only  the 
right  of  navigation.  The  title  of 
the  bed  of  the  river,  lake  or  sound 
in  such  case,  and  all  special  privi- 
leges and  advantages  incident 
thereto  vest  and  remain  in  the 
owner  thereof,  subject  only  to  the 
public  easement."  Tennessee. — 
Elder  vs.  Burrus,  6  Humph.  358, 
367;  in  which  Mr.  Justice  Thorley 
said:  "Shall  it  be  held  that  the 
interest  of  the  cammunity  of  Eng- 
land requires  that  their  navigable 
streams  should  belong  to  the 
Crown  as  public  property,  but 
that  in  all  the  States  bordering  on 
the  Mississippi  and  its  mighty 
tributaries,  these  great  and  impor- 
tant highways,  by  which  such  an 
amount  of  merchandise  of  every 
kind  and  description  is  annually 
sent  to  market,  shall  belong  to 
private  individuals  because  the 
tide  does  not  ebb  and  flow  in 
them?  Surely  not  unless  we  are 
compelled  by  positive  law  to  so 
maintain."  Roberts  vs.  Cunning- 
ham, Martin  &  Yerg.  67;  Stuart 
vs.  Clark,  2  Swan,  i;  58  Am.  Dec. 
49;  Sighs  vs.  State,  7  Baxter  493; 
Martin  vs.  Mance,  3  Head  649; 
Memphis  vs.  Overton,  3  Yerger 
387;  Holbert  vs.  Edens,  5  Lea.  204; 
40  Am.  Rep.  26;  Irwin  vs.  Brown, 
Tenn.  12  S.  W.  340;  Goodwin  vs. 
Thompson,  15  Lea.  209;  54  Am. 
Rep.  410.  In  those  of  the  above 
cases  in  which  a  definite  boundary 
line  of  riparian  lands  is  fixed,  it  is 
placed  at  low  water  mark.  Iowa. 
— McMannus  vs.  Carmichael,  3 
Iowa  I ;  Leading  Case;  Haight  vs. 


Keokuk,  4  Iowa  199,  212;  Grant 
vs.  Davenport,  18  Iowa  179,  185; 
Tawlin  vs.  Dubuque  Ry.  Co.  32 
Iowa  106,  7  Am.  Rep.  176;  Kraut 
vs.  Crawford,  18  Iowa  549;  Musser 
vs.  Hershey,  42  Iowa  356;  Hough- 
ton vs.  C.  D.  &  M.  R.  Co.,  47  Iowa 
370;  Barney  vs.  Keokuk,  94  U.  S. 
324;  Renwick  vs.  D.  &  N.  W.  Ry. 
Co.,  49  Iowa  664,  669;  Moffatt  vs. 
Brewer,  2  G.  Greenq^  348.  Ala- 
bama.— Bullock  vs.  Wilson,  2  Por- 
ter 436;  Hagan  vs.  Campbell,  8 
Porter  9;  Lewen  vs.  Smith,  7  Por- 
ter 42S;  Mobile  vs.  Eslava,  9 
Porter  577;  16  Peters  U.  S.  234; 
Magee  vs.  Hallett,  22  Ala.  699; 
Stein  vs.  Ashby,  24  Ala.  521;  30 
Ala.  363;  Ellis  vs.  Carey,  30  Ala. 
725;  Rhodes  vs.  Otis,  33  Ala.  578; 
Peters  vs.  New  Orleans  Ry.  Co., 
56  Ala.  52S;  Williams  vs.  Glover, 
66  Ala.  189;  Walker  vs.  Allen,  72 
Ala.,  456;  Sullivan  vs.  Spotwood 
82  Ala.  163.  Virginia. — i  Rev. 
Code  pp.  142,  143;  also  tit.  I9,  ch. 
62,  sec  1;  Norfolk  City  vs.  Cook, 
27  Gratt.  430;  Mead  vs.  Haynes,  3 
Rand  33,  36;  Home  vs.  Richards, 
4  Call  441;  2  Am.  Dec.  571;  French 
vs.  Bankhead,  11  Gratt  136;  Rich- 
ards vs.  Home,  2  Wash.  36;  Martin 
vs.  Beverly,  5  Call.  444. 

1  Palmer  vs.  Mulligan,  3  Caines 
307;  2  Am.  Dec,  270;  People  vs. 
Piatt,  17  Johns  195;  Hooker  vs. 
Cummings,  20  Johns  90;  11  Am. 
Dec.  549;  Canal  Appraisers  vs. 
People,  5  Wend.  423;  People  vs. 
Canal  Appraisers,  13  Wend.  355; 
17  Wend.  571;  People  vs.  Seymour, 
6  Cowan  579;  Ex  parte  Jenkins  6 


82 


COMMON    LAW    THEORIES. 


[§54. 


the  rule,  even  as  to  such  rivers  as  the  Hudson/  with  the 
exception  of  the  Mohawk^  and  the  Niagara  rivers.^  In  South 
Carolina  also  the  earlier  cases  held  that  the  common  law  rule 
was  inapplicable  to  the  condition  of  the  State, ^  but  in  the 
later  cases  the  Court  held  that  the  rule  does  apply. ^  The 
same  can  be  said  of  Kentucky.*^  In  Mississippi  also  there 
seems  to  be  a  difference  of  opinion." 


Cowan  518,  and  note;  People  vs. 
Seymour,  6  Cowan  580;  Authur  vs. 
Case,  I  Paige  447 ;Varick  vs.  Smith, 
5  Paige  137;  9  Paige  547;  28  Am. 
Dec.  417;  Stars  vs.  Child,  20  Wend. 
149;  5  Deiijo.  599,  4  Hill  369; 
Jackson  vs.  Holstead,  5  Cowan  216. 
1  Chenango  Bridge  Co.  vs.  Paige, 
83  N.  Y.  178;  8  Hun.  292,  in  which 
the  Court  held  that  a  fresh  water 
stream  is  the  private  property  of 
the  riparian  owners,  in  which  the 
public  have  an  easement  only  for 
navigation  and  for  floating  logs 
and  timber,  a  right  of  passage, 
and  nothing  more,  as  in  a  common 
highway,  and  the  proprietor  has  a 
right  to  use  the  land  and  water  of 
the  stream  in  any  way  not  incon- 
sistent with  the  easement.  Pier- 
pont  vs.  Loveless,  72  N.  Y.  211;  4 
Hun.  696;  Mottvs.  Mott,  68  N.  Y. 
246;  8  Hun.  474;  Morgan  vs.  King, 
35  N.  Y.  454;  18  Barb.  277;  30  id. 
9;  Buffalo  Pipe  Line  Co.  vs.  N.  Y. 
R.  Co.,  10  Abb.  N.  Cas.  107,  116, 
note.  As  to  the  Hudson  see  Smith 
vs.  Rochester,  92  N.  Y.  463;  44 
Am.  Rep.  393. 

2  Canal  Appraisers  vs.  People, 
17  Wend.  571;  People  vs.  Canal 
Appraisers,  33  N.  Y.  461;  Crill  vs. 
Rome,  47  How.  P.  398;  People 
vs.  Gutchess,  48  Barb.  656,  667; 
Fort  Plain  Bridge  Co.,  vs.  Smith, 

3N.  Y.  44- 

3  Kingman  vs.  Sparrow,  12  Barb. 


201;  Canal  Appraisers  vs.  People, 
17  Wend.  591,  597. 

4  In  Kates  vs.  Waddington,  i 
McCord  580,  10  Am.  Dec.  699;  it 
was  held  that  a  river  merely  cap- 
able of  being  navigable,  was  pri- 
vate. In  Jackson  vs. Lewis, Clieves, 
S.  C.  259,  the  law  is  considered  in 
doubt. 

5  McCullough  vs.  Wall,  4  Rich. 
68,  86;  Boatwright  vs.  Bookman, 
Rice  447,  Noble  vs.  Cunningham, 
McMull  Cli.  289;  Jackson  vs. Lewis, 
Cheves,  259;  State  vs.  Hickson,  5 
Rich.  447;  State  vs.  Columbia,  27 
S.  Car.  137,  146;  Shands  vs.  Trip- 
let, 5  Rich.  Eq.  76,  79. 

t'  .'\s  to  early  cases  see  Louis- 
ville vs.  U.  S.  Bank,  3B.  Mon.  138, 
143,  Thurman  vs.  Morrison,  14  B. 
Mon.  367;  Morrison  vs.  Thurman, 
17  B.  Mon.  249;  66  Am.  Dec.  153: 
Hawksville  vs.  Lander,  8  Bush. 
679;  Trustees  vs.  Wagnon,  i  A.  K. 
Marsh.  243;  Cockrell  vs.  McQuinn, 
4  Mon.  61;  Bruce  vs.  Taylor,  2  J. 
J.  Marsh  160;  Hart  vs.  Rogers,  9. 
B.  Mon  418,  422.  Late  Cases: 
Berry  vs.  Snyder,  3  Bush.  266,  274; 
96  Am.  Dec.  619;  Williamsburg 
Boom.  Co.  vs.  Smith,  84  Ky.  372; 
Kentucky  Lumber  Co.  vs.  Green, 
87  Ky.  257;  Louisville  Bridge  Co. 
vs.  Louisville,  81  Ky.  189;  Miller 
vs.  Hepborn,  8  Buch.  326. 

"Gould    sec.    63   and  64;    The 
Magnolia   vs.    Marshall,  39   Miss. 


55.] 


COMMON    LAW    THEORIES. 


83 


§55.  Sjiine  — Same— United  States  Survey.— In  those 
States  in  which  the  rule  extending  the  riparian  owner's  title 
to  the  center  of  the  stream  had  not  been  previously  adopted, 
and  in  which  the  lands  were  originalh-  surveyed  under  the 
laws  of  the  United  States,  the  riparian  owners  take  at  least  to 
the  waters  edge,  regardless  of  the  lines  run  by  the  surveyors 
along  the  river  banks. i  This  gives  the  owners  all  the 
incidents  of  riparian  proprietorship  to  the  use  of  the  water, 
including  river  frontage,  with  right  of  access  to  and  from  the 
adjoining  land  -^  and  gives  them  the  right  to  accretions,  so 


109;  Morgan  vs.  Reading,  3  S.  & 
M.  366;  Commissioners  vs.  Withers, 
29  Miss.  21. 

1  Railroad  vs.  Schurmeier,  7 
Wall,  273;  10  Minn.,  82;  in  this 
case  Chifford  J.  says:  "  Congress, 
in  making  a  distinction  between 
streams  navigable  and  those  not 
navigable,  intended  to  provide 
tliat  the  common  law  rules  of 
riparian  ownership,  should  apply 
to  lands  bordering  on  the  latter, 
but  that  the  title  to  the  lands 
bordering  on  navigable  streams, 
should  stop  at  the  stream,  and 
that  all  such  streams  should  be 
deemed  to  be  and  remain  public 
highways.  Although  such  riparian 
proprietors  are  limited  to  the 
stream,  still  they  also  have  the 
right  to  construct  suitable  land- 
ings and  wharves,  for  the  con- 
venience of  commerce  and  navi- 
gation, as  is  accorded  riparian 
proprietors,  bordering  on  naviga- 
ble waters,  affected  by  the  ebb  and 
flow  of  the  tide."  In  Packer  vs. 
Bird,  137  U.  S.,  661 ;  the  Court  held 
"that  the  undoubted  rule  of  the 
common  law  that  the  title  of 
owners  of  land  bordering  on  navi- 
gable rivers,  above  the  ebb  and 
n  jw   of   the    tide,  extends    to    the 


middle  of  the  stream,  having 
been  adopted  in  some  of  the 
States,  Federal  Courts  must  con- 
strue grants  of  the  general  gov- 
ernment without  reference  to  the 
rules  of  construction  adopted  by 
the  States  for  such  grants  by 
them." 
2  Yates  vs.  Milwaukee,  10.  Wall, 
497;  where  the  Court  held :  A 
riparian  proprietor,  whose  land  is 
bounded  by  a  navigable  river,  has 
the  right  of  access  to  the  navigable 
part  of  the  river,  and  the  right  to 
make  a  landing, wharf  or  pierfor  his 
own  use  or  for  the  use  of  the  public. 

The  riparian  right  is  property, 
and  is  valuable,  and  the  owner 
can  be  deprived  of  it  only  if 
necessary  that  it  be  taken  for  the 
public  good,  upon  due  compensa- 
tion. 

A  municipal  corporation  can 
not,  by  its  mere  declaration  that 
a  structure  is  a  nuisance,  to  re- 
moval by  any  persons  supposed  to 
be  aggrieved,  or  even  by  the  city 
itself. 

A  city  cannot  by  creating  a 
mere  artificial  and  imaginary  dock 
line,  deprive  riparian  owners  of 
the  right  to  avail  themselves  of 
the    advantage    of   the    navigable 


84 


COMMON    LAW   THEORIES. 


[§  55. 


that  they  are  not  separated  from  the  water  of  the  river. ^  The 
States  of  Missouri,  Minnesota,  Arkansas,  Oregon,  Nevada, 
Kansas,  Florida  and  California  follow  this  rule  and  riparian 
owners  upon  a  navigable  stream  take  at  least  to  the  waters 
edge.^ 


channel,  by  building  wharves  and 
docks  to  it.  Dutton  vs.  Strong,  i 
Black,  23;  Sherlock  vs.  Bainbridge, 
41  Ind.,  35. 

1  Banks  vs.  Ogden,  2  Wall.,  57; 
Kraut  vs.  Crawford,  18  Iowa,  549; 
in  which  the  Court  held  that  a 
patentee  of  land  which  is  situated 
upon  the  banks  of  a  navigable 
stream,  is  entitled  to  all  the  land 
adjacent  to  his  grant  to  the  waters 
edge.  Benson  vs.  Morrow,  61  Mo., 
345;  Lamme  vs.  Bush,  70  Mo.,  463; 

2  Missouri. — Benson  vs.  Morrow, 
61  Mo.,  345;  Lamme  vs.  Bush,  70 
Mo.,  462;  Jones  vs.  Soulard,  24 
How.,  41.  "In  Missouri  the 
riparian  proprietor  owns  only  to 
the  waters  edge,"  Blackwell,  J.  in 
Myers  vs.  St.  Louis,  8  Mo.  App., 
272.  Minnesota. — Schurmeier  vs. 
St.  Paul  Ry.  Co.,  10  Minn.,  82, 
102;  88  Am.  Dec,  59;  7  Wall.,  272; 
Union  Dep.  Co.  vs.  Brunswick,  31 
Minn.,  297.  In  the  opinion  of 
Castner  vs.  The  Dr.  Franklin,  i 
Minn.,  73,  the  Court  said:  "The 
navigation  of  small  streams  has 
been  embarrassed  and  impeded  b}' 
individual  ownerships  and  im- 
provements. Lands  bounded  by 
navigable  rivers  have  carried,  as 
incidents  of  this  circumstance,  the 
exclusive  right  to  the  soil  to  the 
middle  of  the  stream,  and  where 
they  were  united  in  the  same 
person  on  both  sides  of  the  river, 
such  person  has  exercised  exclu- 
sive control  of  the  entire  channel 
adjacent.    *    *    *   From  this  view. 


however  we  have  taken  of  the  law 
in  this  case,  we  have  not  deemed 
it  necessary  to  declare  judicially 
that  the  principle  of  the  common 
law  we  have  been  discussing  is  not 
applicable  to  our  situation."  Ore- 
gon.— Minto  vs.  Delancy,  7  Oreg., 
337,  where  the  court  held  that 
where  a  navigable  river  was  mean- 
dered, in  making  the  public 
sur\'ey,  and  the  United  States  has 
granted  land  bounded  by  the 
meandered  line,  the  grantee  takes 
the  river.  The  stream  and  not 
the  meander  line,  is  the  true 
boundary  of  the  riparian  owner. 
Weise  vs.  Or.  Iron  Co.,  13  Oreg., 
496;  Moore  vs.  Williamette  Transp. 
Co.,  7  Ore.,  355;  Johnson  vs. 
Knott,  13  Oreg.,  308,  311;  Parker 
vs.  West  Cost  Packing  Co.,  17 
Oreg.,  510,  515;  Shaw  vs.  Oswego 
Iron  Co.,  10  Oreg.,  371,  45  Am. 
Rep.,  146.  Nevada. — Shoemaker 
vs.  Hatch,  13  Nev.  261 ;  where  it  was 
held  that  the  water-course,  and 
not  the  meander  line  by  which  it 
surveyed,  is  the  boundary  of  the 
fractional  sub-division  of  land. 
Kansas. — Woods  vs.  Fowler,  26 
Kan.,  682;  40  Am.  Rep.,  330;  was 
an  action  by  the  owner  of  lands 
bordering  on  the  Kansas  River, 
to  restrain  certain  parties  from 
cutting  and  removing  ice  formed 
opposite  his  land.  The  stream 
had  once  been  used  for  navigation, 
but  had  been  subsequently  de- 
clared non-navigable  by  the  legis- 
lature ;  and  the  Court  by  Brewer,  J., 


§  56.]  COMMON    LAW    THEORIES.  85 

§  5().  Nature  of  Ownership  in  a  Watereoni-se.— Under  the 

common  law.  as  decided  in  the  ancient  Kn.i?lish  cases,  "a 
watercourse  begins  ex  jure  naturae,  and  having  taken  a 
certain  course  naturally,  cannot  be  diverted."^  But  all  ripar- 
ian owners,  through  whose  land  a  stream  naturally  flows,  may 
enjoy  the  privilege  of  using  it.  The  property  in  the  water 
itself,  therefore,  by  virtue  of  this  ownership,  is  in  its  nature 
usu-fructuary,  and  the  riparian  proprietor  has  no  title  to  the 
water  itself."^  As  Blackstone  tersely  says:  "For  water  is  a 
movable,  wandering  thing,  and  must  of  necessity  continue 
common  by  the  law  of  nature;  so  that  I  can  only  have  a 
temporary,  transient,  usu-fructuary  property  therein;  where- 
fore, if  a  body  of  water  runs  out  of  my  pond  into  another 
man's,  I  have  no  right  to  reclaim  it.  But  the  land  which 
that  water  covers  is  permanent,  fixed  and  immovable,  and, 
therefore,  in  this,  I  may  have  a  certain  substantial  property, 
of  which  the  law  will  take  notice,  and  not  of  the  other. "^ 
The  rights  of  all  of  the  riparian  proprietors  upon  a  stream 
are  equal,  therefore,  one  proprietor,  though  he  has  an 
undoubted  right  to  use  the  waters  for  hydraulic  purposes  as 
it  passes  his  land,  yet  he  must  so  use  it,  as  to  do  no  injury 
to  any  other  proprietor.^  This  is  the  necessary  result  of  the 
perfect  equality  of  right  among  all  the  proprietors.  Thus, 
each    proprietor     upon     the     stream    may     insist    that    its 

<lelivering   the    opinion,    declared  decided  that  the  vSacrain«>nto   Riv- 

that  "the  act  of  the  Legislature  did  er  being  navigable  in  fact,  a  title 

not  extend  to  the  riparian  owners  upon   it  extends   no  farther  than 

title  to  the  thread  of  the  river,  and  the  edge  of  the  stream,  the  Court 

that  the  title  to  the  soil  being  in  accepts  that  decision  as  expressing 

tlie  State,  and  the  stream  being  in  the  law  of  that  State.    32  Cent.  L. 

a    public  highway,    ownership    of  J.  294,  297. 

the  ice  would  rest  in  the  general  l  Shury   vs.    Piggot,    Bulstrode's 

public,    or   in    the    State,    as   the  Rep.    339;   Merritt   vs.    Parker,    i 

representative    of     the      public."  Coxe's  (N.  J.)  460. 

l-'lorida.  —  Rocki     vs.    Cone,     25,  2  See  Gould  on  Waters,  395,  note 

I-la.,    I.        California.  —  Lux    vs.  2. 

Haggin,  69   Cal.,  255;    Packers  vs.  •'  2  Blackslone,  Com.  18. 

Bird,  71    Cal.,  134,  137,  U.  S.,  661;  •»  2  Hen.    IV,    II    B.;  22  Hen.  VI; 

in    which    the  Supremo    Court  of  11    Rol.    Al)r.    107;    Tyler  vs.   Wil- 

the    United    Stales  lieM,  Uial  the  kinson,  .1   Mason's  Cir.    Ct.    Rep. 

highest  Court  of  California  having  .(oo. 


86 


COMMON    LAW    THEORIES. 


[§56. 


waters  shall  flow  to  his  land  in  the  usual  quantity,  at  its 
natural  place  and  height,  and  that  it  shall  flow  ofif  his  land  to 
his  neighbor  below,  in  its  accustomed  place  and  at  its  usual 
level. ^  From  the  above  principles,  it  may  be  seen  that  the 
right  of  private  property  in  a  stream  of  water  is  derived  as  a 
corporal  right  or  hereditament  from,  or  is  embraced  by,  the 
ownership  of  the  soil  over  which  it  naturally  passes.^  This 
right  is  a  part  of  the  freehold  of  which  no  man  can  be  dis- 


1  Shury  vs.  Piggot,  3  Bulst,  339; 
Brown  vs.  Best,  i  Wilson,  174; 
Miner  vs.  Gilmour,  12  Mo.  P.  C. 
156;  Wright  vs.  Howard,  i  Sim.  & 
Stu.  190,  in  which  was  held  that 
every  owner  of  land  on  the  hanks 
of  a  river,  has,  prima  facie ^  an 
equal  right  to  use  the  water,  and 
cannot  acquire  a  right  to  throw 
the  water  back  on  the  proprietor 
above,  or  to  divert  it  from  the 
proprietor  below,  without  a  grant 
or  twenty  years  enjoyment,  which 
is  evidence  of  a  grant.  Dickinson 
vs.  Grand  Junction  Canal  Co.,  7 
Exch.  282;  Rex  vs.  Traford,  i  B. 
&  Ad.  259;  20  Enc.  C.  L.  Rep.  498; 
Saunders  vs.  Newman,  i  B.  &  Ad. 
258;  4  Eng.  C.  L.  Rep.  123;  Wood 
vs.  Waud,  3  Ex.  Ch.  748;  Embrey 
vs  Owen,  6  Ex.  Ch.  353;  Lyon  vs. 
Fishmongers,  Co.  i  App.  Cas.  662; 
Chaseraore  vs.  Richards,  5  H.  &  N. 
989;  Mason  vs.  Neil,  3  B.  &  Ad. 
304;  Crossley  vs.  Lightowler,  L.  R. 
3  Eq.  296;  Atchinson  vs.  Peterson, 
20  Wall.  507,  in  which  it  was  held 
that  "on  the  mineral  lands  of  the 
public  domain,  in  the  Pacific  States 
and  Territories,  the  doctrine  of  the 
common  law,  declaratory  of  the 
rights  of  riparian  proprietors,  re- 
specting the  use  of  running  waters, 
are  inapplicable,  or  applied  only 
to  a  very  limited  extent,  to  the 
necessities  of  miners,  and  inade- 


quate for  their  protection.  Their 
prior  appropriation  gives  the  bet- 
ter right  to  running  waters,  to  the 
extent  in  quantity  and  quality 
necessary  for  the  use  to  which  the 
water  is  applied."  Davis  vs.  Get- 
chell,  50  Maine,  602  ;  79  Am. 
Dec.  636,  and  note;  I'illsbury  vs. 
Moore,  44  Maine,  154;  69  Am.  Dec. 
91;  Johns  vs.  Stevens,  3  Vt.  308; 
Anthony  vs.  Laphani,  5  Pick.  175; 
Cary  vs.  Daniels,  8  Met.  466;  Pratt 
vs.  Lamson,  2  Allen,  275,  285; 
Tourtelot  vs.  Phelps,  4  Gray,  370; 
Cowles  vs.  Kidder,  24  N.  H.  365; 
Buddington  vs.  Bradley,  10  Conn. 
213;  26  Am.  Dec.  386;  Gillett  vs. 
Johnson,  30  Conn.  180;  Taylor  vs. 
Welch,  6  Ore.  199;  King  vs.  Tif- 
fany, 9  Conn.  162;  Coffman  vs. 
Robbins,  8  Ore.  278;  Hutchinson 
vs.  Coleman,  5  Hoi.  (N.  J.)  74; 
Bowman  vs.  Wether,  2  McLean, 
376;  Dilling  vs.  Morey,  6  Ind.  324: 
63  Am.  Dec.  385;  Evans  vs.  Merri- 
weather,  3  Scan.  492;  38  Am.  Dec. 
106:  Rhodes  vs.  Whitehead,  27 
Texas,  304;  Davis  vs.  Fuller,  12 
Vt.  178;  36  Am.  Dec.  334;  Adams 
vs.  Barne)',  25  Vt.  225;  Howe 
Scale  Co.  vs.  Terry,  47  Vt.  109; 
3  Kent's  Com.  439,  side  paging; 
Angell  on  W.  C,  Sec.  95-97;  Gould 
on  Waters,  Sec.  204-213. 
-  Reynolds  vs.  McArthur,  2  Peters 
417. 


§  56,  57.]  COMMON     LAW    THEORIES.  87 

seized  but  by  the  lawful  judgment  of  his  peers,  or  by  due 
process  of  law.^  Still  no  action  will  lie  to  recover  the 
possession  of  a  watercourse,  by  that  name,  or  for  the  re- 
covery of  the  water  itself,  as  for  so  many  cubical  yards  or  for 
so  many  acres  of  water;  but  as  Blackstone  states,  the  action 
must  be  brought  for  so  many  acres  of  land  covered  by  water. ^ 

§  57.  Riijhts  of  Riparian   Proprietors  in   General.— The 

rights  of  riparian  proprietors  are  such  as  grow  out  of,  or  are 
connected  with,  their  ownership  of  the  banks  of  the  vStreams 
and  rivers.  And  for  the  purpose  of  this  work  no  distinction 
will  be  made  in  the  discussion  of  those  rights  as  to  whether 
they  relate  to  public  or  navigable  streams,  or  private  or  non- 
navigable,  since  riparian  rights  proper  depend  upon  the 
ownership  of  the  land  contiguous  to  the  water,  and  are  in 
general  the  same,  whether  the  proprietor  of  such  land  owns 
the  soil  under  the  water  or  not.  That  this  is  so,  is  significant 
from  the  fact  that  the  word  ' '  ripa  ' '  from  which  our  word 
"  riparian  "  comes  refers  to  the  bank  and  not  the  bed  of  the 
stream.-'  In  Delaphine  vs.  Chicago  and  North  Western  Rail- 
way Co.^  the  Court  by  Mr.  Justice  Cole  upon  this  subject 
said,  "  But  while  the  riparian  proprietor  only  takes  to  the 
\yater  line,  it  by  no  means  follows,  nor  are  we  willing  to  admit 
that  he  can  be  deprived  of  his  riparian  rights  without  compen- 
sation. As  proprietor  of  the  adjoining  land,  and  as  connected 
with  it,  he  has  the  right  of  exclusive  access  to  and  from  the 
waters  of  the  lake  at  that  particular  place;  he  has  the  right  to 
build  piers  and  wharves  in  front  of  his  land  out  to  navigable 
waters  in  aid  of  navigation,  not  interfering  with  the  public 
use.  These  are  private  rights  incident  to  the  ownership  of 
the  shore,  which  he  possesses,  distinct  from  the  rest  of  the 
public.     All  the  facilities  which  the  location  of  his  land  with 

1  Gardner  vs.  Newl>c'rji,  2  Johns  to  the  party,  the  power  cannot  he 
Ch.  162,  where  it  was  held,  that  legally  exercised.     Beidelman  vs. 
though  the  legislature  has  power  Foulk,  5  Watts.  308. 
to   Uike   private   property  of  this  '^  2   Blackstone    Com.    18;     Run- 
kind  for  useful  and  necessary  pub-  nington  on  Ivject.  131. 
lie  purposes,  it  is  bound  to  provide  3  Rouviers  Law  Die.  vSnh.  Rij)a., 
a  fair  compensation  to  the  Individ-  Gould  on  Waters,  14S. 
ual  whose  ])roperty  is  taken,  and  •I  42  Wis.,  214 
until  a  just  indeinnily  is  afforde  1 


88  COMMON    LAW    THEORIES.  [§  57,  58. 

reference  to  the  lake  affords  he  has  the  right  to  enjoy  for  pur- 
pose of  gain  or  pleasure;  and  they  oftentimes  give  property  thus 
situated  its  chief  value.  It  is  evident  from  the  nature  of  the  case 
that  these  rights  of  user  and  of  exclusion  are  connected  with 
the  land  itself  grow  out  of  the  location  and  cannot  be  materially 
abridged  or  destroyed  without  inflicting  an  injury  upon  the 
owner  which  the  law  should  redress.  It  seems  unnecessary 
to  add  the  remark,  that  these  riparian  rights  are  not  common 
to  the  citizen  at  large,  but  exist  as  incidents  to  the  right  of 
the  soil  itself  adjacent  to  the  water.  In  other  words,  accord- 
ing to  the  uniform  doctrine  of  the  best  authorities,  the  foun- 
dation of  riparian  rights,  ex  vi  terjni?ii,  is  the  ownership  of 
the  bank  or  shore.  In  such  ownership  they  have  their  origin. 
They  may  and  do  exist,  though  the  fee  in  the  bed  of  the 
river  or  lake  be  in  the  State.  If  the  proprietor  owns  the  bed 
of  the  stream  or  lake  this  may  possibly  give  him  some  addi- 
tional right;  but  his  riparian  rights,  strictly  speaking,  do  not 
depend  on  the  fact." 

§58.  Same — (,'oiitiiiuetl. — Whether  riparian  rights  attach 
or  not  the  principal  question  depends  upon  the  ownership 
of  the  land  which  is  contiguous  to  and  touches  upon  the 
water. ^  And  as  to  whether  the  land  is  in  actual  contact  with 
the  flow  of  the  stream,  whether  that  contact  be  lateral  or 
vertical,  it  is  necessary  that  it  should  exist. "-^  So  if  the 
government  surveyors  ran  a  meander  line  along  the  bank  of 
a  stream  in  surveying  public  lands,  and  left  a  narrow  strip 
of  land  between  their  line  and  the  water  at  its  ordinary 
height,  the  patent  of  the  surveyed  land  is  limited  by  the 
meander  line,  and  the  patentee  is  not  a  riparian  owner.  ^ 
Riparian  rights  may  exist  in  a  person  who  is  not  the  owner 
in  fee  but  who  is  entitled  to  the  exclusive  possession  of  the 
land  contiguous  to  the  water.     Such  a  person  is  entitled  to 

1  Jones  vs.  Johnson,  i8  How.  150;  "^  Lammer  vs.  Nissen,  4  Neb.  250, 
Johnson  vs.  Jones,  i  Black  209;  452;  where  it  was  held  that  an  en- 
Bates  vs.  111.  Cent.  Ry.  Co.,  i  try  of  government  lands,  bounded 
Black  204.  by   a   meandered   line,    does    not 

2  Miner  vs.  Gilmour,  12  Moo.  P.  include   land    13'ing   at    the    time 
C.  131;  Chasemore  vs.  Richards,  7  between  such  meandered  line  and 
H.  L.  Cas.  349,  373,  382;  Lord  vs.  the  bank  of  the  river. 
Comr'sof  vSidney,  12M0U.  P.C.473. 


§  58,  59.]  COMMON    LAW    THEORIES.  89 

all  of  the  rights  incident  to  the  land.^  So  also  riparian  rights 
attach  to  lakes  and  ponds,  and  are  not  dependent  upon  the 
existence  of  a  current.  This  will  be  discussed  hereafter. "-^  It 
must  also  be  borne  in  mind  that  these  riparian  rights  are  a 
species  of  property  which  belong  to  their  owner,  and  do  not 
depend  at  all  upon  the  fact  as  to  whether  that  owner  actually 
uses  any  of  the  rights  or  not.  A  person  trespassing  upon 
those  rights  cannot  insist  that  equity  ought  to  interfere,  for 
the  reason  that  the  owner  does  not  need  or  want  any  of  his 
rights  afforded  by  the  stream  for  his  own  use.  No  man  is 
justified  in  withholding  property  from  the  owner,  when 
required  to  surrender  it,  on  the  ground  that  he  does  not  need 
its  use,  as  the  owner  may  do  what  he  will  with  his  own.-^ 

§  59.  Same.— Kiglit  to  Natural  Flow  of  Water— One  of 

the  principal  common  law  rights  of  riparian  owners  or  pro- 
prietors is  to  have  the  stream  which  washes  their  banks  flow 
as  it  is  wont  by  Nature,  without  material  diminution  or  alter- 
ation. This  is  so  whether  the  stream  be  navigable  or  non-navi- 
gable in  the  absence  of  grant,  license  or  prescription  limiting 
their  rights. ^  Or  as  the  rule  is  laid  down  by  Mr.  Justice 
Story, ^  "  Prima  facie,  every  proprietor  on  each  bank  of  a 
river  is  entitled  to  the  land  covered  with  the  water  to  the 
middle  of  the  thread  of  the  stream,  or,  as  is  commonly 
expressed,  usque  ad filiun  aquae.  In  virtue  of  this  ownership 
he  has  a  right  to  the  use  of  the  water  flowing  over  it,  in  its 

1  Hanford  vs.  St.  Paul  Ry.  Co.,  Getchell,  50  Maine,  602;  Pillsbury 

43  Minn.  104.  vs.  :Moore,  44  Maine,  154;  Anthony 

•^  Turner   vs.    Holland,   65  Mich.  vs.  Lapham,  5  Pick.,  175;  Gary  vs. 

453.  Daniels,    8   Met.,    466;    IMerrifield 

■■5  Corning  vs.  Troy  Iron,  etc.  Co.  vs.    Worcester,    no    Mass.,    219: 

40    N.    Y.    206;    Van    Sickle    vs.  Gillett  vs.  Johnson,  30  Conn.,  180; 

Haines,  7  Nev.  249.  Rhodes  vs.   Whitehead,    27  Tex., 

4  Shury  vs.  Piggot,  3  Bulst.  339;  304;  Hill  vs.  Newman,  5  Cal.,  445; 

Brown    vs.    Best,    i    Wilson,    174;  Taylor    vs.    Welch,    6    Ore.,    198; 

Miner  vs.  Gilmour,  12  Mo.  P.  C,  Coffnian  vs.  Robins,  8  Ore.,   278; 

.   156;    Wright  vs.   Howard,   i   Sim.  3  Kent  Com.,  439;  Angell  on  W. 

&   Stu.,   190;    Saunders  vs.  New-  C,    95;     Gould    on    Waters,    204; 

man,  I.  B.  &  Add.,  258;  I^yon  vs.  Pom.  on  Riparian  rights  section  8 

Pishmongers  Co.,  i  App.  Cas.,  662;  and  cases  cited. 

Bealy  vs.  Shaw, 6  Kast.,  208;  Mason  •>  Tyler  vs.  Wilkinson,  4  Mason'a 

vs.  Hill,  3  ]'..  &  Ad.  304;  Davis  vs.  Cir.  Ct.,  )<x). 


^0 


COMMON    LAW    THEORIES. 


[  §  59. 


natural  current,  without  diminution  or  obstruction.  But 
strictly  speaking  he  has  no  property  in  the  waters  itself  but  a 
simple  use  of  it  as  it  passes  along.  "^  By  the  rules  of  common 
law  all  proprietors  of  lands  have  precisely  the  same  right  to 
waters  flowing  through  their  domains,  and  one  can  never  be 
permitted  to  so  use  the  stream  as  to  injure  or  anno}'  those  who 
are  situated  on  the  course  of  it,  either  above  or  below  him. 
And  if  any  person  on  the  river  interpose  an  impediment, 
interrupts  or  diverts  the  course  of  the  water  to  the  injury  of 
others,  successive  actions  on  the  case  would  lie  until  the 
interruption  should  be  removed.'-^  This  right  to  use  the  water 
at  its  ordinary  flow  is  regarded  and  protected  by  the  common 
law  authorities    as  property, -"^  not   as    a    mere    easement    or 

spring  of  water  rises  upon  the 
land  of  one  owner,  and  from  it 
runs  a  stream  on  to  the  land  of 
another  the  owner  of  the  land  upon 
which  is  the  spring  has  no  right 
to  divert  the  stream  from  its 
natural  channel  although  the 
waters  of  the  stream  are  not  more 
than  sufficient  for  his  domestic 
uses  for  his  cattle  and  for  irrigat- 
ing his  land.  Frankum  vs.  Fal- 
mouth, 25  Eng.  Com.  Law.  Rep., 
526;  King  vs.  Tiffany,  9  Conn.,  162; 
Buddington  vs.  Bradley,  10  Conn., 
213;  where  was  held  that  the 
owner  of  land  through  which  a 
water-course  passed  has  a  right  to 
the  flow  of  the  water  in  its  natural 
course  without  diminution  or 
alteration.  McEalmont  vs.  Whit- 
taker,  3  Rawle's,  84;  Hendricks 
vs.  Johnson,  6  Post,  (Ala.)  472; 
Pugh  vs.  Wheeler,  2  Dev.  and 
Bat.,  (N.C  .)  50;  Merritt  vs.  Parker, 
I  Coxe's  N.  J.  L.,  460. 

3  Nuttall  vs.  Bracewell,  L.  R.  2 
Ex.,  i;  Hadley  vs.  Hadley  Mfg. 
Co.,  4  Gray,  140;  Gould  vs.  Boston 
Duck  Co.,  13  Gray,  442,  450;  Ash- 
ley vs.  Pease,  18  Pick.,  268;  Blanch- 
ard  vs.  Baker,  8  Maine,  253:  Kee- 


1  See  also  Webb  vs.  Portland 
Mfg.  Co.,  3  Sumn.  Cir.  Ct.  R., 
198;  Bomans  Devesees  vs.  Latham 
2  McLeon,  376;  Action  vs.  Blun- 
dell,  12  M.  and  W.,  324;  Owen  vs. 
Field,  102  Mass.,  104;  Corning  vs. 
Troy  Iron  Factory,  40  N.  Y.,  191; 
39  Barb.,  311;  Hay  vs.  Sterrett,  2 
Watts,  327;  Tyler  vs.  Wilkinson,  4 
Mason,  377;  Callis  on  Sewers,  268; 
2  Blackstone  Com.,  18;  3  Kent 
Com.,  439;  Gould  on  Waters,  204. 

^  In  the  case  of  Ingraham  vs. 
Hutchinson,  2  Conn.,  584,  Chief 
Justice  Swift  laid  down  the  law  as 
follows:  "  By  common  law  every 
person  owning  land  on  the  banks 
of  rivers  has  a  right  to  the  use  of 
water  in  its  natural  stream  without 
diminution  or  alteration;  that  is 
he  has  a  right  that  it  should  flow 
nbi  currere  sotebat;  and  if  an}- 
person  on  the  river  above  him 
interrupts  or  diverts  the  course  of 
the  water  to  his  prejudice,  the 
action  will  lie.  This  will  give  to 
every  one  all  the  advantage  he  can 
divert  from  the  water  which  does 
not  injure  the  proprietor  of  lands 
on  the  river  below  him."  Arnold 
vs.  Foot,   12  Wend.,  330;  where  a 


§59.] 


COMMON    LAW    THEORIES. 


91 


appurtenance  to  the  land,  but  as  inseparably  annexed  to 
the  soil  itself.^  "  The  right  to  the  use  of  water  is  a  right  of 
property  depending  on  the  ownership  of  the  land  over  which 
water  flows,  and  is  very  readily  deducted  from  the  principle 
well  established  in  our  law  that  one  who  owns  the  soil  owns 
from  the  centre  of  the  earth  to  the  heavens  as  expressed  in 
the  well-known  maxim,  "  Otjus  est  solum  ejus  usque  ad 
caebim,  et  ad  infernos y^  In  the  case  of  Lux  vs.  Haggin,-' 
the  Court  explains  this  principle  as  follows:  "By  common 
law  the  right  of  the  riparian  proprietors  to  the  flow  of  the 
stream  is  inseparably  annexed  to  the  soil  and  passes  with 
it,  not  as  an  easement  or  appurtenance,  but  as  part  and  parcel 
of  it.  Use  does  not  create  the  right,  and  disuse  cannot  destroy 
or  suspend  it.  The  right  in  each  extends  to  the  natural  and 
usual  flow  of  all  the  water,  unless  where  the  quantit}^  has  been 
diminished  as  a  consequence  of  the  reasonable  application  of 
it  by  other  riparian  owners  for  purposes  hereafter  to  be 
mentioned.""* 


ney  Mfg.  Co.  vs.  Union  Mfg.  Co., 
39  Conu.,  582;  McCahiiont  vs. 
Whitaker,  3  Rawle,  84;  Brown  vs. 
Bush,  45  Penn.  St.,  61;  Beissell  vs. 
Scholl.  4  Dallas,  211.  Water  power, 
though  an  incident  to  property  in 
the  land,  is  itself  the  subject  of 
property. 

Tillotson  vs.  vSniith,  32  N.  H., 
94;  Eddy  vs.  Simpson,  3  Cal.,  249; 
Kidd  vs.  Laird,  15  Cal.,  161;  Lux 
vs.  Ilaggin,  69  Cal.,  255;  10  Pac. 
Rep.,  753. 

1  Dickinson  vs.  Grai'.d  Junction 
Canal  Co.,  7  Kxch.,  299;  Wright 
vs.  Howard,  i  Sim.  and  Stu.,  190; 
Wood  &  Waud,  3  Exch.,  74S; 
Johnson  vs.  Jordan,  2  Met.,  239; 
Gardner  vs.  Newburgh,  2  Johns. 
Ch.,  16;  7  Am.  Dec,  526;  Evans 
vs.  Merriweather,  3  Scam.,  492; 
Union  Mill  Co.  vs.  Ferris,  2  .Saw- 
yer, 176;  vShamleffer  vs.  Peerless 
Mill  Co.,  18  Kan.,  24;  Hill  vs. 
Newman,   5  Cal.,   \\^\    Heath    vs. 


Williams,  25  Maine,  209;  43  Am. 
Dec,  269;  2  Black  Com.,  14. 

2  Note  to  Gardner  vs.  Newburgh. 
7  Am.  Dec,  526. 

S  69  Cal.,  255;   10  Pac.  Rep.,  753. 

•1  Angell  on  water-courses,  Sec 
93;  Shury  vs.  Pigot,  Bulst.  339; 
Countess  of  Rutland  vs.  Bowles, 
Palmer  290;  Washb.  Easem.  319; 
Gould  on  Waters,  Sec  204;  John- 
son vs.  Jordan,  2  Mete  239;  Tyler 
vs.  Wilkinson,  4  Mason,  397; 
Sampson  vs.  Hoddinott,  i  C.  B. 
(U.  S.)  590;  Hill  vs.  Newman,  5 
Cal.  445;  Pope  vs.  Kinman,  54 
Cal.  3,  Creighton  vs.  Evans,  53 
Cal.  55:  The  right  of  a  riparian 
owner  to  have  the  water  of  a 
stream  run  through  his  land  is  a 
vested  right,  and  any  interference 
with  it  imports  at  least  nominal 
damages,  even  if  there  be  no 
actual  damages.  I'crrca  vs.  Knipo 
28  Cal  340;  Hale  vs.  McLea,  53 
Cal.  578;  Wadsworlh  vs.Tillottson, 
15  Conn.  366. 


92  COMMON    LAW    THEORIES.  [§  60. 

§  60.  Riglit  of  Diversion — Authorities. — In   the  case  of 
Weiss  vs.  Oregon  Iron  Co.^  decided  in  the  arid  region,  by 
the  Supreme  Court  of  Oregon,  upon  the  subject  of  diversion,  the 
authorities  are  collected,  and  we  will  quote  at  length.  The  Court 
said:   "  The  owner  has  no  property  in  the  water  itself,  but  a 
simple  usufruct.    He  may. use  it  as  it  passes  along,  but  he  must 
send  down  to  his  neighbor  below  as  much  as  he  receives  from 
his  neighbor  above.     (Ang.  Water-Courses,  §  §  90,  94.)     'As 
a  general  proposition,  every  riparian  proprietor  has  a  natural 
and  equal  right  to  the  use  of  the  water  in  the  stream  adjacent 
to    his    land,    without    diminution    or  alteration.'     (Washb. 
Easem.  319.)   '  Riparian  proprietors  are  entitled,  in  the  absence 
of  grant,  license  or  prescription  limiting  their  rights,  to  have 
the   stream   which  washes   their   lands   flow  as  is  wont  by 
nature,  without  material  diminution  or  alteration.'     (Gould 
Waters  §204).     Chancellor  Kent  says:   'Though  he  may  use 
the  water  while  it  runs  over  his  lands,  he  cannot  unreasonably 
detain  it,  or  give  it  another  direction,  and  he  must  return  it 
to  its  ordinar}^  channel  when  it  leaves  his  estate.     Without 
the  consent   of  the  adjoining  proprietors  he   cannot  divert  or 
diminish   the    quantity    of    water    which    v>'ould    otherwise 
descend  to  the  proprietors  below.'     (3  Kent  Com.  439.)     'Aqua 
curitt  et  debet  ciirrere  ut  currere  solebat '  is  the  language  of  the 
ancient  common  law.     The  right  to  a  water-course  begins  ex 
jure  naturae,  and  having  taken  a  certain  course  naturally,  it 
cannot  be  diverted  to  the   deprivation  of  the  rights  of  the 
riparian   owners    below.     This    is    the    language   of    all   the 
common-law   text-books,   and  the   decisions.     (Ang.   Water- 
courses, §  93.)    'It  is  an  ancient  and  well  established  principle  ' 
said  Weston,  J.,    'that  water  cannot   be  lawfully  diverted, 
unless  it  is  returned  again  to  its  accustomed  channel  before 
it  passes  the  land  of  the  proprietor  below.     Running  water 
is  not  susceptible  of  an  appropriation  which  will  justify  the 
diversion  or   unreasonable  detention  of  it.'     (Blanchard   vs. 
Baker,    8    Greenl.    266).      'The   general  rule  of  law  is  that 
every  man  has  the  right  to  have  the  advantage  of  a  flow  of 
water  in  his  own  land,   without  diminution    or    alteration.' 

1  13  Oreg.  498,  II  Pac.  Rep.  255. 


§  60.]  COMMON    LAW    THEORIES.  93 

(Lord  Ellenborough,  in  Bealy  vs.  Shaw,  6  East.  2oS,  214.)  By 
settled  principles  of  both  the  civil  and  common  law  the  riparian 
owner  has  a  usufruct  in  the  stream  as  it  passes  over  his  land, 
of  which  he  cannot  be  deprived  by  mere  diversion.'  (Pope 
vs.  Kinman,  54  Cal.  3.)  As  a  result  of  the  American  and 
English  cases,  the  common  law  doctrine  is  thus  summed  up 
in  the  editorial  note  to  Heath  vs.  Williams,  25  Me.  209;  S.  C. 
43  Am.  Dec.  275:  '  The  general  principle  is,  that  every 
owner  of  land  through  which  a  natural  stream  of  water  flows 
has  a  usufruct  in  the  stream  as  it  passes  along,  and  has  an 
equal  right  with  those  above  and  below  him  to  the  natural 
flow  of  the  water  in  its  accustomed  channel,  without  unrea- 
sonable detention  or  substantial  diminution  in  quantity  or 
quality,  and  none  can  make  any  use  of  it  prejudicial  to  the 
other  owners,  unless  he  has  acquired  a  right  to  do  so  by 
license,  grant,  or  prescription.' 

The  defendant  as  riparian  owner,  has  a  right  to  the  use  of 
the  stream  for  its  own  necessary  uses,   but  this  right  must  be 
reasonably  exercised,  and  there  must  be  no  substantial  diminu- 
tion or  w^aste.     It  is  entitled  only  to  so  much  of  the  stream  as 
will  not  materially  diminish  its  quantity,  and  it  may  use  it  for 
any   legal    purpose   provided   it   returns   the   stream    to    its 
channel  uncorrupted  and  without  any  essential  diminution. 
Such  uses  of  a  stream  by  riparian  owners  is  to  some  extent  a 
question    of    degree,  and    in    all    such    cases   the   size    and 
capacity  of  the   stream    is   to    be   considered.     Tlie  amount 
taken  from  a  large    running    stream  whicli  would  cause  no 
sensible  or  practical  diminution   of  its   benefits   to    a   lower 
proprietor  would,  if  taken    from   a   small  stream,  materially 
diminish  its  quantity  and  work  a  manifest  injury.       What    is 
a   reasonable  use    must  necessarily  depend    upon    the  facts, 
considering  the  size  of  the  stream  and  amount  appropriated. 
But    all    the    authorities    concur    that    when     the    amount 
abstracted  perceptibly  or  materially  diminishes  the  quantity 
of    the    stream,    such    use    of    it    by    a    riparian    owner    is 
unreasonable,  and  an    infringement    on    the    rights   of  other 
riparian  owners,  for  which  the  law  furnishes  redress.       The 
plaintiff  is  entitled  to  the  natural  flow  of  the  water   in    its 
accustomed   channel,    subject    only    to    the    diminution    and 


94  COMMON    LAW    THEORIES.  [§  60. 

retardation  incident  to  a  reasonable  use.  Whatever  goes 
beyond  this  is  an  infringement  of  his  rights  in  the  stream 
which  may  form  the  basis  of  a  presumption  of  a  grant  by 
lapse  of  time,  and  necessarily  imports  damages,  and  entitles 
him  to  the  protection  of  the  law.  (Plumleigh  vs.  Dawson,  i 
Oilman,  544.)  And  Mr.  Angell  says  :  'That  a  diversion  of  a 
water-course  without  actual  injury  to  a  riparian  owner  lower 
down  the  stream  legally  imports  damages,  (because  it  is  an 
infringement  of  a  right,)  is  a  doctrine  powerfully  sustained  by 
American  authorities.'  (Aug.,  Water-courses,  §  135.) 

Now,  the  counsel  for  the  defendant,  while  admitting  that  the 
rule  of  the  common  law  as  to  riparian  owners  is  fatal  to  the 
claim  of  the  defendant  upon  the  facts,  insists  that  the  rule  itself 
needs  to  be  liberalized,  and  that  the  case  presented  is  a  for- 
cible illustration  of  the  hardship  and  injustice  of  its  operation, 
and  of  the  duty  of  the  Court  to  so  extend  or  liberalize  it  as 
to  protect  the  defendant  from  the  burdens  and  unjust  exactions 
which  must  be  the  consequences  of  its  strict  application.  His 
argument  in  effect  is,  that  the  amount  of  water  abstracted 
and  diverted  is  necessary  to  carry  on  the  defendant's  business, 
which  is  a  laudable  enterprise  that  deserves  on  account  of 
the  supposed  benefits  to  accrue  from  its  successful  'establish- 
ment to  be  encouraged  and  protected,  and  that  such  use  of 
the  water,  although  it  may  sensibly  diminish  the  supply  of  the 
stream, will  leave  a  suflBcient  quantity  to  flow  in  its  accustomed 
channel  for  all  present  and  prospective  purposes  to  which  the 
plaintiff  can  apply  it.  But  as  Black,  J.,  said  in  Wheatley  vs. 
Chrisman  :  '  The  necessities  of  one  man's  business  cannot  be 
the  standard  of  another's  rights  in  a  thing  which  belongs  to 
both.  The  defendant  had  a  right  to  such  use  as  he  could 
make  of  the  water  without  materially  diminishing  it  in 
quantity.  *  *  *  If  he  needed  more  he  was  bound  to  buy 
it.  However  laudable  his  enterprise  might  be,  he  cannot 
carry  it  on  at  the  expense  of  his  neighbor.  One  who  desires 
to  work  a  lead  mine  may  require  land  and  money  as  well  as 
water,  but  he  can  not  have  either  unless  he  first  makes  it  his 
own.'  (24  Pa.  St.,  302.)  And  in  a  late  case  in  the  same 
Court  the  doctrine  of  the  law  as  laid  down  in  Wheatley  vs. 
Chrisman,    supra,  was   approved   and   confirmed,  the   Court 


§  60.]  COMMON    LAW    THEORIES.  95 

saying  :  '  When  the  upper  riparian  owner  diverts  6r  uses  the 
water,  not  for  ordinary  domestic  purposes  or  uses,  as  are 
inseparable  and  necessary  to  the  use  of  his  land,  but  for 
manufacturing  or  other  purposes  the  case  is  different. '  (Penn, 
Ry.  Co.  vs.  Miller,  3  Atl.  Rep.,  780.)  In  such  case,  the  right 
to  the  use  of  the  water  must  be  reasonably  exercised,  and 
with  proper  regard  for  the  equal  rights  of  the  other  proprietors. 
(Gould,  Waters,  §§  304,  305).  Of  course,  every  use  of  water  of 
a  stream  involves  some  diminution,  and  as  Story,  J.,  said: 
'To  hold  that  there  can  be  no  diminution  whatever  by  a 
riparian  proprietor  in  the  use  of  the  water  as  it  flows,  would 
be  to  deny  any  valuable  use  of  it.  There  may  be  and  there 
must  be  allowed  of  that  which  is  common  to  all  a  reasonable 
use  by  each.  (Tj^ler  vs.  Wilkinson,  4  Mason,  401.)  And 
here,  if  the  appellants,  after  diverting  the  quantity  for 
the  purpose  of  propelling  the  mill,  returned  the  sur- 
plus not  consumed  b}-  such  use  to  the  channel  of  the 
stream  a  different  case  would  be  presented.  In  that 
event,  it  might  turn  out  that  the  amount  abstracted  did  not 
materially  diminish  the  quantit}'  of  the  stream,  and  the  right 
to  use  the  water  being  thus  reasonably  exercised  it  could  not 
be  said  to  be  wrongful  or  injurious  to  the  plaintiff  or  other 
proprietors.  But  the  diversion  of  a  water-course,  or  a  part  of 
it,  by  an  upper  riparian  proprietor  for  manufacturing 
purposes,  without  restoring  to  the  channel  the  excess  of  water 
not  actually  consumed  is  never  allowed.  That  cannot  be 
considered  a  reasonable  exercise  of  the  right  to  use  the  water 
of  a  stream  which  involves  its  substantial  diminution  and 
waste.  '  Whether  or  not  a  diversion  of  water  is  reasonable,' 
said  Harris,  J.,  '  is  a  question  not  .so  much  as  mentioned  by  any 
writer  or  judge.  The  very  proposition  assumes  the  right 
of  the  proprietor  above  to  use  the  water  for  his  own 
purposes,  to  the  exclusion  of  the  proprietors  below — a 
proposition  inconsistent  witli  the  doctrine  universally  admitted, 
as  we  have  seen  that  all  proprietors  have  the  same  rights.' 
(Van  Hoesen  vs.  Coventry,  10  Barb.,  522.) 

We  do  not  think  the  contention  of  the  counsel  for  the  defen- 
dant can  be  maintained  upon  principle  or  authority.  Nor  do  we 
think  the  objection   to  the  exercise  of  the  jurisdiction   well 


@6  COMMON    LAW    THEORIES.  [§  60,  61. 

taken.  Mr.  High  says  :  '  A  riparian  proprietor,  owning  to 
the  center  of  the  stream,  is  entitled  to  the  aid  of  equity  to  pre- 
vent a  diversion  of  the  water  from  the  natural  channel.  Nor 
does  the  neglect  of  complainants  to  use  or  appropriate  the  water- 
power,  or  the  fact  that  they  have  as  yet  sustained  but  small 
pecuniary  damage,  or  that  the  defendant  would  be  subjected 
to  heavy  expense  if  compelled  to  restore  the  water  to  its 
original  channel,  present  such  objections  as  would  warrant  a 
Court  of  equity  in  refusing  relief.'  (High,  Inj.,  §  795,  and 
authorities  cited.") 

§  61.  Riparian  Rights — Obstructing  Flow — Acceleration 
of  Current. — The  rule  above  stated  that  the  proprietors  have 
the  right  to  have  the  stream  flow  as  it  is  wont  by  nature  with- 
out material  diminution,  applies  to  obstructing  the  flow  of 
the  stream  even  temporarily.^  Or,  as  Angtll  lays  down  the 
rule:  "An  action  for  the  diversion  of  a  water-course  is 
grounded  on  the  deprivation  of  water,  and  hence,  if  the 
party  complaining  is  deprived  of  water  by  any  means,  the 
law  will  interfere.  It  is  as  illegal  to  detain  the  water  unrea- 
sonably as  it  is  to  divert  it,  for  though  all  persons  have  an 
equal  right  to  erect  hydraulic  works  on  their  own  land,  yet 
they  must  so  construct  them,  and  so  use  the  water,  that  all 
persons  below  may  participate  without  interruption  in  the 
enjoyment  of  the  same  water.  "2  In  the  famous  case  of 
Tyler  vs.  Wilkinson'^  Mr.  Justice  Story  in  rendering 
the  opinion  said:  "I  do  not  mean  to  be  understood  as 
holding  the  doctrine  that  there  can  be  no  diminution 
whatever,  and  no  obstruction  or  impediment  whatever,  by  a 


1  Embrey  vs.  Owen,  6  Exch.  353;  2  Angell  on  Water-courses  §  115, 

Shears   vs.    Wood,    7  Moore   534;  citing  Arnold  vs.  Foote,  12  Wend. 

Twiss   vs.  Baldwin,  9   Conn.   291;  330;  Howell  vs.  McCoy,  3  Rawle. 

Sackrider  vs.  Beers,  10  Johns  241;  256;  Hay  vs.  Sterritt,  2  Watts.  327. 

Hay    vs.    Sterrett,    2    Watts    327;  See    also    Twiss    vs.    Baldwin,    9 

Thompson  vs.  Crocker,  9  Pick.  59;  Conn.  291;  Sackrider  vs.  Beers,  10 

Soule   vs.    Russell,    13    Met.    436;  Johns.  241. 

Merritt  vs.  Brinckerhoff,  7  Johns  3  4  Mason  401. 
306;  Gerrish  vs.  Newmarket  Mfg. 
Co.,  30  N.  H.  478. 


§  61.]  COMMON    LAW    THEORIES.  97 

riparian  proprietor  in  the  use  of  the  water  as  it  flows,  for  it 
would  be  to  deny  any  valuable  use  of  it;  there  may  be,  and 
there  must  be  allowed  of  that  which  is  common  to  all,  a  reason- 
able use.  The  true  test  of  the  principal  and  an  extent  of  the 
use  is  whether  it  is  to  the  injury  of  the  other  proprietors  or 
not.  *  *  *  The  law  here,  as  in  many  other  cases,  acts  with 
reasonable  reference  to  public  convenience  and  public  good,  and 
is  not  betra3-ed  into  a  narrow  strictness,  subversive  of  common 
use,  nor  into  an  extravagant  looseness  which  would  destroy 
private  rights.  The  reasonableness  of  detention  by  a  riparian 
proprietor  above,  causing  injury  to  a  riparian  proprietor  below, 
depends  upon  all  of  the  circumstances  of  each  particular  case, 
including  the  size  of  the  stream,  the  time  the  water  was 
detained,  and  the  use  that  was  made  of  it,  by  all  interested."^ 

The  rule  also  applies  to  the  acceleration  of  the  current  of  the 
stream,  whereby  the  lower  proprietor  is  injured.  The  lower 
proprietor  has  the  right  to  insist  that  the  current  flow  as  it  is 
wont  by  Nature.''^  So  an  upper  mill  owner  has  no  right  to  accu- 
mulate a  large  head  of  water,  by  shutting  down  his  gates,  and 
then  discharge  it  upon  the  works  and  lands  of  the  proprietor 
below. ^ 

So,  also,  an  upper  proprietor  has  no  right  to  discharge 
the  natural  drainage  of  his  land,  or  the  surface  water 
accumulated  thereon  in  ponds,  or  the  water  drawn  from 
wells  therein,  into  a  natural  water-course,  if  in  so  doing  he 
thus  accelerates  the  natural  flow  and  increases  the  volume 
of  the  water  in  the  stream  to  a  point  whereby  the  capacity  of 
the  stream  is  exceeded,  and  the  riparian  proprietors  below  are 
injured  in  any  manner.^ 

1  See  Merritt  vs.  Brinckerhoff,  7  a  riparian  owner  who  retains  or 
Johns.  306.  stores    the    waters    of    a   natural 

2  Grant  vs.  Kuglar,  81  Ga.  637.  stream   and    discharges   them    in 

3  In  the  case  of  Kelly  vs.  Lett,  such  quantities  as  to  cause  it  to 
13  Ired.  50,  where  this  was  done  overflow  it-s  banks  and  injure  the 
wilfully,  and  with  the  intent  to  lands  of  a  riparian  proprietor  be- 
injure  the  plaintiff,  trespass  vi  et  low,  is  liable  for  a  trespsss,  and 
artnis,  was  held  to  be  the  proper  for  the  damages  occasioned  there- 
remedy.  See  also  Haywoocl  vs.  by,  and  may  also  be  restrained 
Edwards,  Pliila.  Law.  350;  McKee  therefrom  by  injunqtion. 

vs.  Delaware  &  H.  Canal  Co.,  125  <  Jackman  vs.  Arlington  Mills, 
N.  Y.  353;  where  it  was  held  that       137  Mass.   277;  Wheeler  vs.   Wor- 


98 


COMMON    LAW    THEORIES. 


[§62. 


§  62.  Riparian  Rights— Pollution  of  a  Watercourse.— The 

rule  above  stated  also  applies  to  the  corruption  or  pollution  of 
watercourses,  and  the  riparian  proprietors  have  the  right  to 
insist  that  the  stream  flow  as  it  is  wont  by  Nature,  undeterior- 
ated  in  quality  as  well  as  undiminished  in  quantity;  and  any 
pollution  of  the  stream  by  one  proprietor,  to  such  a  degree  as 
to  impair  its  purity  and  usefulness  for  any  of  the  purposes  to 
which  the  lower  proprietors  have  a  right  to  apply  the  same, 
is  an  invasion  of  the  private  rights  of  those  proprietors 
injured  thereby,  and  they  are  entitled  to  remedy  both  at  law 
and  equity.^  Neither  can  a  riparian  proprietor  use  the  water 
in  such  a  manner  as  to  corrupt  the  atmosphere,  to  the 
injury  of  other  riparian  proprietors  or  the  community  at 
large.  ^ 


cester,  lo  Allen  591;  McCormick 
vs.  Horam,  81  N.  Y.  86;  Williams 
vs.  Gale,  3  H.  &  John.  231;  Miller 
vs.  Lambach,  47  Penn.  St.  154; 
Treat  vs.  Bates,  '  27  Mich.  390; 
Noonan  vs.  Albany,  79  N.  Y.  470; 
Davison  vs.  Hutchinson,  44  N.J. 
Eq.  474;  Wagner  vs.  Chaney,  19 
111.  App.  546. 

1  Tenant  vs.  Goldwin,  2  Ld.  Ray- 
nion,  1089;  Holt  500;  Mason  vs. 
Hill,  5  B.  &  A.  D.  i;  Embrey  vs. 
Owen,  6  Exch.  153;  Wood  vs. 
Waud,  4  Exch.  748;  Bealey  vs. 
Shaw,  6  East  28;  Stonehewer  vs. 
Farrar,  6  Q.  B,  730;  Buccleuch  vs. 
Cowan,  2  App.  Cas.  344;  Merrifield 
vs.  Lombard,  13  Allen,  16;  Wood- 
ard  vs.  Worcester,  121  Mass.  245; 
Richmond  Manf.  Co.  vs.  Atlantic 
DeLaine  Co.  10  R.  I.  106;  Lewis 
vs.  Stein,  16  Ala.  214;  Holsman  vs. 
Boilin.s^  Spring  Bleaching  Co.  14 
N.  J.  Eq.  335  As  to  what  sources 
of  pollution  have  been  held  to  be 
actionable,  see  Gould  on  Waters, 
Sec.    219,   and   Angell   on   Water- 


courses, Sec.  136,  and  cases  cited. 
Howard  vs.  McCoy,  3  Rawle,  256; 
Tyler  vs.  Wilkinson,  4  Mason,  397. 
2  In  the  case  of  Story  vs.  Ham- 
mond, 4  Ohio,  376,  the  Court  held 
that  "Every  member  of  society  is 
bound  by  the  principles  of  natural 
justice,  so  to  use  his  own  property 
as  not  to  injure  the  ri^jhts  of 
others;  and,  if  an  individual  erects 
a  mill-dam  which  creates  disease 
and  sickness,  he  must  be  responsi- 
ble for  the  consequences.  The 
defense  set  up  is  entirely  without 
foundation.  If  a  man  were  to  sally 
forth  into  the  public  streets  of  a 
town  and  commit  an  assault  and 
battery  upon  every  person  he  met, 
it  would  hardly  be  competent  for 
hi:n,  in  a  suit  by  an  individual  for 
special  damages,  to  set  up  as  a 
defense  that  he  had  not  only  beat 
the  plaintiff,  but  had  also  beat  the 
whole  town;  or,  if  a  man  were  to 
poison  a  reservoir  of  water,  used 
for  the  supply  of  a  city,  and 
thereby  create  a  general  sickness 


§  63,  64.]  COMMON  LAW    THEORIES.  99 

§  63.  Right  to  Flow  of  Whole  Streiim.— The  right  of  one 
or  more  proprietors  of  several  to  the  flow  of  a  stream  cannot 
be  divided  if  the  division  is  opposed  by  the  others.  So,  if  a 
water-course  divides  two  estates,  the  riparian  owner  of  neither 
can  lawfully  carry  off  any  part  of  the  water  without  the 
consent  of  the  owner  opposite  ;  and  not  only  this,  but  he  must 
also  obtain  the  consent  of  all  the  propf ietors  above  and  below 
who  would  be  affected,  or  damaged  by  the  diversion.  In 
other  words  each  proprietor  is  entitled  not  to  half,  or  other 
proportion  of  the  water,  but  to  the  whole  bulk  of  the  stream 
undivided  and  indivisible.  The  joint  proprietors  must  use  it 
as  an  entire  stream  in  its  natural  channel.  A  severance  would 
destroy  the  rights  of  all. 1  It  is  impossible  from  the  very 
nature  of  things,  that  one  proprietor  can  take  water  only  from 
his  side,  as  an  equal  portion  from  the  other  side  of  the  stream 
must  have  mingled  with  all  that  was  diverted. ^  All  parties 
are  entitled /(?r  my  et per  tout,  to  their  proportion  of  the  whole 
stream  as  it  naturally  flows  in  its  course,  and  no  proprietor 
can  divert  any  portion  of  it,  although  the  portion  diverted  be 
less  than  any  proprietor  be  actually  entitled  to.-^ 


§  64.  Right  of  Access  to  and  from  Estate.— The  right  to 
enter  from  one's  own  estate  upon  the  water-course,  and  to  pass 
from  the  water-course  to  one's  own  estate  bordering  upon  the 


among  the  inhabitants,  it  would  tory,  40  N.  Y.,  191;  Parker  vs. 
not  be  seriously  contended  that  Griswold,  17  Conn.,  301;  Curtiss 
the  magnitude  of  the  offence  was  vs.  Jackson,  13  Mass.,  507;  Bear  vs. 
a  bar  to  a  private  action;  or,  in  Hoffman,  79  Penn.  St.,  71;  Elliott 
other  words,  that  he  might  excul-  vs.  Pitchhurg  Ry.  Co.,  10  Cush., 
pate  himself,  by  proving  that  he  191;  Plumleigh  vs.  Daw.son,  Gil- 
had  not  only  poisoned  the  plain-  man,  544; 
tiff,  but  had  poisoned  all  the  inhab-  2  ibid. 

itants  of  the  city."  -^  Angell  on  W.  C,  Sec.  loi;  Webb 

1  Vanderburg  vs.  Vanderburg,  13  vs.  Portland  Mfg.  Co.,  3  Summer, 

Johns,  N.   Y.,  212;  Blanchard   vs.  189;  Gould   on   Waters,    Sec.    207; 

Baker,  8   Greene,  Me.,  253;  Webb  Moulton   vs.  Newburyport   Water 

vs.  Portland  Mfg.  Co.,  3  Summer,  Co.,  137  Mass.,  163. 
198;  Corning  vs.  Troy,   Iron    h'ac- 


100  COMMON    LAW    THEORIES.  [§  64. 

Stream,  exists  only  in  the  riparian  owners  of  such  estate.  ^ 
This  right  exists  by  virtue  of  his  riparian  ownership, 
and  is  entirely  different  from  the  public  right  of  pass- 
ing and  repassing  along  the  highway  of  the  river. ^  This 
right  is  exclusive  in  the  proprietor,  and  extends  to  all  portions 
of  his  domain  fronting  upon  the  water,  whether  it  is  ever 
used  b)^  him  or  not.  •  And  any  interruption  of  it  is  an 
encroachment  upon  a  private  right,  whether  caused  by  a 
public  or  a  private  nuisance,  or  authorized  by  legislative 
enactment,  unless  proper  condemnation  proceedings  have 
been  had  for  it,  with  just  compensation.^  This  riparian 
right  is  property,  and  is  valuable,  and  the  owner  can 
be  deprived  of  it  only  when  it  is  necessary  that  it  be 
taken  for  the  public  good.  In  Yates  vs.  Milwaukee,'* 
Mr.  Justice  Miller  says:  "This  riparian  right  is  property, 
and  is  valuable,  and,  though  it  must  be  enjoyed  in  due 
subjection  to  the  rights  of  the  public,  it  cannot  be  arbitrarily 
or  capriciously  destroyed  or  impaired.  It  is  a  right  of  which 
when  once  vested  the  owner  can  only  be  deprived  in  accordance 
with  established  law,  and  if  necessary  that  it  be  taken  for  public 
good  upon  due  compensation."^  The  riparian  owner  is  per- 
mitted to  make  a  landing,  wharf,  or  pier,  for  his  own  use  or  for 
the  use  of  the  public,  provided  that  he  does  not  interfere  with 
the  general  right  of  the  public  to  navigation  upon  the  stream.^ 

1  Gould  on  Waters,  Sec.  149,  N.  S.  525;  Yates  vs.  Milwaukee, 
151;  Yates  vs.  Milwaukee,  10  Wall.  10  Wall.  497;  Button  vs.  Strong, 
497;  Wilkes  vs.  Hungerford  Mar-  i  Black  25;  Schurmeir  vs.  Railway 
ket  Co.,  2  Bing.  N.  R.  281;  Rex  vs.  Co.,  7  Wall.  272;  Atlee  vs.  Packet 
Russell,  6  B.  &  C.  566;  Lyon  vs.  Co.,  21  Wall  389;  Carli  vs.  Still- 
Fishmongers'  Co.,  i  App.  Cas.  662.  water  Ry.  Co.  28  Minn.  373. 

2  Atty.  Gen.  vs.  Conservators  of  ■*  10  Wall,  497. 

the  Thames,   i  H.  &  M.  i;  Lyon  5  See  also  Yates  vs.  Judd,  18  Wis. 

vs.  Fishmonger  Co.,   i  App.  Cas.  118;  Webber  vs.  Harbor  Comr's  18 

662;  Bell  vs.  Quebec,  5  App.  Cas.  Wall.  57;  Atlee  vs.  Packet  Co.,  21 

84;  Brown  vs.  Gugy,  2  Moo.  P.  C.  Wall.    389;  Van    Dolson   vs.   New 

N.  S.  341;  Benjamin  vs.  Storr,  L.  York,  2  Black  454,  Meyers  vs.  St. 

R.  9  C.  P.  400;  Fitz  vs.  Hobson,  Louis,  8  Mo.  App.  255;  82  Mo.  367; 

28  W.  R.  459,  722.  Morrill  vs.  St.  Anthony  Falls  Co., 

'i  Yarmouth  vs.  Simmons,  10  Ch.  26  Minn.  222. 

D.  518;  Bell   vs.  Quebec,    5  App.  6  Ibid;  Button  vs.  Strong,  i  Black 
Cas.  84;  Brown  vs.  Gugy,  10  Jur. 


§64.] 


COMMON    LAW    THEORIES. 


101 


As  to  the  right  of  riparian  owners  to  the  bed  of  navigable 
rivers,  between  high  and  low  water  mark,  the  decisions  are 
somewhat  conflicting,  although  the  preponderance  of  authority 
lays  down  the  rule  that  the  riparian  owner  holds  the  right  of- 
access  to  the  water,  subject  to  the  right  of  the  State  to 
improve  navigation.^  That  the  riparian  owner  has  a  cause  of 
action  where  his  access  is  cut  off  by  a  structure  erected  between 
high  and  low  water  mark  by  a  corporation  acting  under  a 
charter  is  held  to  be  the  rule  in  England. ^  Also  this  is  the  rule 
in  a  great  many  of  the  States,  and  the  Supreme  Court  of  the 
United  States  has  affirmed  these  decisions.^  But  in  the  case 
in  New  York  of  Gould  vs.  Hudson  Ry.  Co.,^  decided  before  that 
of  Yates  vs.  Milwaukee,  the  Court  holding  a  contrary  opinion 
to  the  above  principle,  says:  "Whatever  rights  the  owner 
of  the  land  has  in  the  river,  or  in  its  shore,  below  high  water 
mark,  are  public  rights,  which  are  under  the  control  of 
Legislative  power,  and  any  loss  sustained  through  the  act  of 
the  Legislature  affecting  them  is  daninutn  absque  injuria.'''' 
This  doctrine  has  also  been  followed  in  lowa^  and  New 
Jersey.^'     But  the  great  weight  of  authority  follows  the  case 


23;  Schurmeir,    vs.  Railway    Co., 
7  Wall.  272. 

1  Philadelphia  vs.  Scott,  81  Penn. 
80. 

2  Buccleuch  vs.  National  Board 
of  Public  Works,  L.  R.  5  H.  L. 
418;  Beckett  vs.  Midland  Ry.  Co., 
L.  R.  3C.  P.  82;  Moore  vs.  Great 
Southern  Ry.  Co.,  10  Ir.  R.  C.  46; 
Regina  vs.  Rynd,  16  Ir.  R.  C.  L. 
29. 

3  Yates  vs.  Milwaukee,  10  Wall. 
497;  Delaplaine  vs.  Chicago  &  N. 
W.  Ry.  Co.,  42  Wis.  214;  24  Am. 
Rep.  394;  Chapman  vs.  Oshkosh 
&  Miss.  Ry.  Co.,  33  Wis.  629; 
Diedrich  vs.  N.  W.  Ry.  Co.  42 
Wis.  248,  264;  Holton  vs.  Milwau- 
kee, 31  Wis.  38;  Providence  Steam 
Eng.  Co.  vs.  Prov.  Steam  Ship  Co., 
12  R.  I.  34S;  Clark  vs.  I'eckham,  lu 


R.  I.  35;  Cleveland  Ry.  Co,  vs.  Ball, 
5  Ohio  St.  568;  Rice  vs.  Ruddiman, 
ID  Mich.  125;  Lorman  vs.  Benson, 
8  Mich,  18;  In  re  Phil.  Ry.  Co.,  6 
Whart.  25,  46;  Pittsburg  vs.  Scott, 
I  Penn.  St.  309,  317;  Ashby  vs. 
Eastern  Ry.  Co.,  5  Met.  368;  Dodge 
vs.  County  Com.  3  Met.  380; 
Chicago  Ry.  Co.  vs.  Stein,  75,  111. 
41. 

4  6.  N.  Y.  535;  12  Barb.  616. 

5  McManus  vs.  Carmichacl,  3 
Iowa  i;  In  Ingraham  vs.  Chicago 
Ry.  Co.  34  Id.  249,  252;  Cooke  vs. 
Burlington,  36  Id.  367,  365;  Musser 
vs.  Ilershley,  42  Id.  356,  361; 
Kucheman  vs,  C.  C.  &  D.  Ry.  Co., 
46  Iowa,  336,  378. 

(>  Stevens  vs.  Peterson  Ry.  Co., 
34  N.  J.  L.  532;  2  N.  J.  Kq.  126; 


102  COMMON    LAW    THEORIES.  [§  64,  65. 

of  Yates  vs.  Milwaukee,  supra,  holding  that  this  riparian 
right  of  access  to  and  from  one's  own  estate  is  property  of  the 
riparian  owner,  and  as  such  no  person  or  the  public  have 
•  the  right  to  take  it  from  the  owner  without  legal  process 
and  just  compensation.^ 

§  65.  Eight  of  Riparian  Owner  to  the  Use  of  Water. — 
In  CieneraL — As  has  been  seen  in  a  previous  section, ^  a 
riparian  proprietor  has  no  ownership  in  the  water  itself, 
running  in  a  natural  stream,  except  as  to  his  usufructuary- 
property  thereto.  The  right  of  a  riparian  owner  to  use  the 
water  of  a  water-course  flowing  by  his  land,  may  be  divided 
into  two  classes.  First,  the  ordinary  use  of  the  water  ;  and 
second,  the  extraordinary  use.  These  uses  are  based  upon 
what  is  called  the  natural  and  artificial  wants  of  man.  Water 
used  to  supply  man's  natural  wants  is  an  "  ordinary  use," 
and  to  supply  man's  artificial  wants  is  an  "extraordinary 
use."  The  real  difference  pointed  out  by  the  authorities, 
between  these  two  classes  of  uses,  is  that  w^ater  may  be  used 
for  ordinary  purposes  without  regard  to  the  effects  of  such 
use  in  case  of  a  deficiency  to  those  below  on  the  stream, 
while  in  reference  to  the  extraordinary  uses,  the  effect  upon 
those  below  must  always  be  considered  in  determining  its 
reasonableness.  In  the  English  case  of  Miner  vs.  Gilmour,^ 
Lord  Kingsdown  said:  "By  the  general  law,  applicable  to 
riparian  proprietors,  each  has  a  right  to  what  may  be  called  the 
ordinary  right  of  a  use  of  water  flowing  past  his  land — for  in- 
stance, to  the  reasonable  use  of  the  water  for  domestic  purposes, 
and  for  his  cattle,  and  this  without  regard  to  the  effect  that 
such  use  may  have  in  case  of  deficiency  upon  the  proprietors 
lower  down  the  stream.  But  further,  he  may  have  use  of  it 
for  any  purpose  or  what  may  be    deemed  the  extraordinary 

Stockham  vs.  Browning,  i8  N.  J.  How.  426;  Clark  vs.  Peckham.  10 

Eq.    390;    Tinsman   vs.    Belvidere  R.  I.  35;  9  Id.  455;  also  cases  cited 

Del.  Ry.  Co.,  26  N.  J.  L.   148;  25  above. 

Id.  255.  2  Ante  sections  52-56. 

1  Boston  vs.  Richardson,  19  How,  '^  12  Moo.  P.  C,  156. 
263,    270;    Boston   vs.    Lecraw,    17 


§  65,  66.]  COMMON    LAW    THEORIES.  103 

use  of  it,  provided  he  does  not  thereby  interfere  with  the  lawful 
use  of  it  by  other  proprietors,  eitlier  above  or  below  him." 
Subject  to  this  condition  a  riparian  proprietor  may  dam  up 
a  stream  for  the  purpose  of  a  mill,  or  divert  the  water  for  the 
purpose  of  irrigation.  But  he  has  no  right  to  interrupt  the 
regular  flow  of  the  stream,  if  he  thereby  interferes  with  the 
lawful  use  of  the  water  by  other  proprietors,  and  inflicts  on 
them  a  sensible  injury.^ 

§  OB.  Siiiiie. — Ordinary  Use  of  Water. — The  common  law 
holds,  in  treating  of  the  uses  of  the  first  class,  that  for  the 
purpose  of  supplying  his  natural  wants  each  riparian  proprie- 
tor has  a  right  to  the  ordinary  use  of  the  water  of  the  stream 
flowing  past  his  land,  even  if  in  supplying  these  wants  all  the 
water  of  the  stream  is  consumed. ^  These  natural  wants  are 
for  "domestic  purposes,"  which  include  culinary  and  house- 
hold purposes,  cleansing  and  washing  and  supplying  the 
wants  of  the  ordinary  quantity  of  horses  and  stock. ^  And 
according  to  the  great  weight  of  common  law  authorities, 
where  the  supply  of  water  is  very  small  for  these  natural  uses, 
the  upper  riparian  proprietor  may,  if  necessary,  consume  all 
of  the  water  of  the  stream  to  supply  his  natural  wants  but  not 
for  any  other  purpose.^     But  according  to  some  authorities  the 

1  See  also  Gould  on  Waters,  Sees.  366;    Arnold  vs.   Foot,   12  Wend., 

205  to  210;  and  cases  cited.       Lux  330;  Gould  on  Water,  section  205, 

vs.     Haggin,    69     Cal.,     255,    406;  and  cases  cited. 

Evans  vs.  Merriweather,  3   Scam.,  3  ibitL  Attorney  Gen.  vs.  Great 

492,  495.  Eastern  Ry.  Co.,  23  L.  T.  N.  S. 

2  Miner  vs.  Gilniour,  12  Mo.  P.  349;     Lowe    vs.    Lambeth    Water 

C,  131,  156;  Marbury  vs.  Kitchin,  Works  Co.,  52  L.  T.   N.   S.,  661; 

3  F.  &  F.,  392;  Wood  vs.  VVaud,  3  Union  Mill  Co.  vs.  I'erris,  2  Saw, 

Exch.,  748;  Swinton  Water  Co.  vs.  176; 

Wills   Canal  Co.   L.  R.    7    H.    L.,  4  ibid.  Roberts   vs.  Richards,  5 

697;  Union  Mill  Co.  vs.   I-"erris,  2  L.J.  Ch.,  297;  51  Id., 944;  44L.T., 

Sawyr.,    176;    Union   Mill   Co.   vs.  291;    Evans    vs.    Merriweather,   3 

Dangljerg,    2    Sawr.,    450;    lUack  Scam.,  492,  495;  Gould  on  Waters, 

vs.  Marsh,  23  Pitts  L.J. ,29;  Spring-  section   205;  Sanford   vs.   Felt,   7; 

field     vs.    Harris,    4    Allen,    494;  Cal.,    249;    Ponieroy    Rii)arinn 

Anthony  vs.  Lapham,  5  Pick,  175;  Rights,  Sec.  125. 
Wadsworth  vs.  Tillotson,  15  Conn., 


104  COMMON    LAW   THEORIES.  [§  66,  67. 

use  of  water  for  culinary  purposes  and  for  cattle  must 
not  deprive  the  other  proprietors  of  an  equal  enjoyment  of 
the  same  right. ^  But  in  some  cases  the  rule  is  laid  down  upon 
this  subject  that  the  reasonable  usefulness  of  a  quantity  of 
water,  for  any  purpose  whatsoever,  is  always  relative.  It 
does  not  depend  upon  the  convenience  of  or  the  profitable 
results  to  any  particular  proprietor,  but  upon  the  reasonable 
use,  reference  being  had  to  the  needs  of  all  the  other  proprie- 
tors upon  the  stream.  It  depends  entirely,  in  other  words, 
upon  all  the  circumstances  of  each  individual  case.^ 

§  67.  Same. — Extraordinary  Use  of  Water. — The  right  of 
riparian  proprietors  to  use  the  water  of  a  stream,  to  supply 
their  artificial  wants,  is  common  to  them  all.  And  where  the 
water  supply  is  sufl&cient,  any  proprietor  can  use  the  water  of 
a  stream  for  any  purpose  whatsoever,  provided  that  none  of 
the  other  proprietors  or  the  public  are  injured,  or  have  any 
rights  infringed  upon  by  his  so  using  it.^  But  it  must  be 
borne  in  mind  that  the  rights  of  all  the  proprietors  upon  the 
stream  are  equal,  in  respect  to  all  extraordinary  uses 
of  the  water  thereof.^       In    the    early   case  of  Beissell   vs. 

1  Chatfield  vs.  Wilson,  31  Vt.,  R.  9  Ch.,  457;  Coulson  &  Forbes 
358;  28  Vt.,49;  Hlanchardvs.Baker       on  Waters  116. 

8    Maine,    253,    266;    McElry    vs.  3  E;iiiott  vs.FitcliburgRy.ioCush 

Gable,  6  Ohio  St.,  187;  Adams  vs.  191,  196;  Merrifield  vs.  Lombard, 

Barney,   25  Vt.,   225;  Pomeroy  Ri-  13  Allen,    16;  Middleton  vs.   Flat 

parian   Rights,   section  7;    Town-  River  Booming  Co.,  27  Mich.  533; 

send  vs.  McDonald,  12  N.  Y.,  381;  Miner  vs.  Gilmore,  12  Moo.  P.  C. 

Pillsbury  vs.  Moore,  44  Maine,  154;  131;  Chasemore  vs.  Richards,  7  H. 

Wadsworth  vs.  Tillotson,  15  Conn.,  L.  Cas,  349;  5  H.  &  N.  982;  Embrey 

366;    39  Am.  Dec,   391;    Bliss  vs.  vs.  Owen,  6  Exch.  353;  Tyler  vs. 

Kennedy,    43   111.,    67;    Heath  vs.  Wilkinson,  4  Mason,  400. 

Williams,  25  Maine,   209;  43  Am.  4  Gould  vs.  Boston  Duck  Co.,  13 

Dec,   274,   note  and   cases   cited;  Gray,442,45o;  Haskins  vs.  Haskins 

Stein    vs.    Burden,    29    Ala.,    127;  9  Gray,  390;    Merryfield  vs.  Wor- 

Slack  vs.  Marsh,  11  Phila.,  543.  cester,  no  Mass.  219;  Moulton  vs. 

2  Elliot  vs.  Fitchburg  Ry.  Co.,  Newburyport  Water  Co.,  137  Mass. 
10  Cush.,  193;  57  Am.  Dec,  85.  163;  Prentice  vs.  Geiger,  74  N.  Y., 
It  has  been  held  in  England  that  341;  9  Hun.  350;  Penn.  Ry.  Co.,  vs. 
the  use  of  water  for  brewing  pur-  Miller,  112  Penn.  St.  34;  Union 
poses  was  an  ordinary  use,  Wilts  Mill  Co.  vs.  Danberg,  2  Saw.  450; 
Canal  vs.  Swindon  Water  Co.,  L.  Duniont  vs.  Kellogg,  29  Mich.  420; 


§  67.]  COMMON    LAW    THEORIES.  106 

Scholl,^  an  action  for  diverting  a  watercourse,  decided  by  the 
Supreme  Court  of  the  United  States,  it  was  held  that  every  man 
in  this  country  has  the  unquestionable  right  to  erect  a  mill 
upon  his  own  land;  and  to  use  the  water  passing  through  his 
land  as  he  pleases,  subject  only  to  this  limitation,  that  his 
mill  must  not  be  so  constructed  and  emplo3'ed  as  to  injure 
his  neighbor's  mill,  and  that  after  using  the  water  he  returns 
the  stream  to  its  ancient  channel. 

In  a  more  recent  Michigan  case,  Mr.  Justice  Cooley  thus 
states  the  rule:  "As  between  different  proprietors,  on  the  same 
stream,  the  right  of  each  qualifies  that  of  the  other,  and  the 
question  always  is,  not  merely  whether  the  lower  proprietor 
suffers  damage  by  the  use  of  the  water  above  him,  nor  whether 
the  quantity  flowing  on  is  diminished  by  the  use,  but  whether 
under  all  the  circumstances  of  the  case  the  use  of  the  water 
by  one  is  reasonable  and  consistent  with  a  correspondent 
enjoyment  of  the  right  by  the  other.  "^ 

According  to  all  of  the  common  law  authorities,  the  only 
right  of  property  in  the  water,  flowing  in  its  natural  channel, 
is  usufructuary;'^  and  that,  after  so  using  it,  if  the  water  has 
been  diverted  from  its  natural  channel  he  must  return  it  to  the 
stream  without  material  diminution  of  quantity  or  alteration 
of  quality,  for  it  is  an  ancient  and  well  established  principle 
of  the  common  law  that  the  water  of  a  stream  cannot  lawfully 
be  diverted  unless  it  is  returned  again  to  its  accustomed  chan- 
nel before  it  passes  to  the  land  of  the  proprietor  below.*  But, 
under  the  comnfon  law,  this  right  to  the  extraordinary  use  of 
water  is  inferior  and  subordinate  to  the  right  of  its  ordinary 


Patten    vs.    Harden,   14   Wis.  473;  ^  Ante  Section  56  and  cases  cited; 

Rudd    vs.    Williams,   43    111.   385;  Angell  on  Waterconrses,   Section 

Rhodes  vs.  Whitehead,  27  Texas,  94  and  cases  cited. 

304;  liatavia  Manf.  Co.  vs.  Newton  4  ibid.    Blanchard    vs.    Kaker,    8 

Wagon  Co.,  91  111.  230,  245;  Pinney  Maine,  253,  266;  Colburn  vs.  Rich- 

vs.  Luce,44:\Iinn.363;  Ulbricht  vs.  ards,  13  Mass.  420;  Cook  vs.  Hull, 

Hufaulia  Water  Co.,  86  Ala.  587.  3  Pick.  269;   Aiithony  vs.  Laphaiii, 

1  4  Dallas,  211.  5  Pick.  175. 

2  Dutnont  vs.  Kellogg,  29  Mich. 
423;  see  also  Carey  vs.  Daniels,  8 
Met.  477. 


106  COMMON    LAW   THEORIES.  [§  67,  68. 

use;  for  if  the  water  of  a  stream  is  barely  sufficient  to  supply 
the  natural  wants  of  the  different  proprietors  none  of  them 
can  use  the  water  for  such  extra  ordinary  purposes  as  irrigation 
or  manufactures,  or  for  any  other  purpose,  except  to  supply 
himself  and  family  with  a  sufficient  quantity  for  domestic 
purposes,  if  in  so  using  it  he  infringes  upon  the  rights  of  any 
of  the  other  riparian  proprietors. ^  One  of  the  most  important 
uses  of  water  in  this  class,  especially  in  the  eastern  portion  of 
the  United  States,  is  its  application  for  the  working  of  mills 
and  machinery.  But  in  this,  as  well  as  other  uses,  the  pro- 
prietor has  no  right  to  use  the  water  to  the  injury  or  prej- 
udice of  the  rights  of  any  of  the  other  proprietors. ^ 

§68.  Same.— Use  of  Water  for  Irrigation.— Also,  accord- 
ing to  the  great  weight  of  authority  the  right,  under  the  com- 
mon law,  of  a  riparian  proprietor  to  irrigate  his  land  comes 
under  this  class  of  extraordinary  uses;  it  being  a  use  to  supply 
his  artificial  wants,  and  for  which  he  is  only  entitled  to  a  reason- 
able use,  in  common  with  all  other  proprietors.^  According 
to  a  few  of  the  earlier  common  law  authorities  of  the  United 
States  the  practice  of  irrigation  seems  to  have  been  per- 
mitted under  great  latitude.^  In  Blanchard  vs.  Baker,  supra, 
Mr.  Justice  Weston  said :  ' '  The  right  to  the  use  of  a  stream 
of  water  is  incident  or  appurtenant  to  the  land  through  which 
it  passes.  It  is  an  ancient  and  well  established  principle  that 
it  cannot  lawfully  be  diverted  unless  it  is  returned  again  to 
its    accustomed    chatmel   before    it    passes    the    land   of    the 


1  Ante  Section  6o  and  cases  cited;  492;  Stein  vs.  Burden,  29  Ala.  127; 
Union  Mill  Co.,  2  Sawyer,  176;  Slack  vs.  Marsh,  11  Phil.  543; 
Crandall  vs.  Woods,  8  Cal.  13&;  Baker  vs.  Brown,  55  Texas,  377; 
Ellis  vs.  Tone,  58  Cal.  289.  Rhodes  vs.  Whitehead,  27  Texas 

2  Tyler  vs.  Wilkinson,  4  Mason,  314;  Flemniing  vs.  Davis,  37  Texas 
400;  Webb  vs.  Portland  Mfg.  Co.,  173. 

3   Sumn.   (Cir.    Ct.)   189;   Boman's  •*   Gould    on    Waters,    Sec.    205; 

Devisees  vs.   Latham,   2   McLain,  Weston   vs.    Alden,    8   Mass.    136; 

376;  Beissell  vs.  Scholl,  4  Dallas,  Perkins  vs.  Dow,   i  Root  (Conn.) 

211.  535;  Hay  ward  vs.  Mason,   i    Root 

3Pom.    Rip.    Rights,    vSec.    125;  (Conn.)  537;  but  see  Blanchard  vs. 

Evans  vs.  Merriweather,  3  Scam.  Baker,  8  Maine  253. 


§  68,  69.]  COMMON   LAW    THEORIES.  107 

proprietor  below.  Running  water  is  not  susceptible  of  an 
appropriation  which  will  justify  the  diversion  or  unreasonable 
detention  of  it.  The  proprietor  of  a  water-course  has  a  right 
to  avail  himself  of  its  momentum  as  a  power  which  may  be 
turned  to  beneficial  purposes;  and  he  may  make  a  reasonable 
use  of  it  for  his  cattle,  or  even  for  irrigation,  providing  it  is 
not  unreasonably  detained  or  essentially  diminished.  For, 
although  by  the  case  of  Westen  vs.  Alden,  (7  Mass.  136)  the 
right  of  irrigation  might  seem  to  be  general  and  unlimited,  5^et 
subsequent  cases  have  restrained  it  consistently  with  the  enjo}"- 
ment  of  the  common  bounty  of  nature,  by  other  proprietors 
through  whose  lan.d  a  stream  has  been  accustomed  to  flow."^ 
In  general  we  will  say,  that  under  the  common  law,  as  inter- 
preted by  the  courts  of  England,  and  those  of  the  United 
States,  in  no  case  is  one  riparian  proprietor  permitted  to  so 
use  the  waters  of  a  natural  stream  as  to  destroy  or  render 
useless  or  materially  affect  the  application  of  the  same  water 
of  the  stream  bj^  the  other  riparian  proprietors  upon  the  same.''^ 

§  6y.  Same, — Same. — As  we  have  seen,  water  for  irrigation 
is  held  by  the  common  law  authorities  not  to  be  a  natural 
want  in  the  same  sense  that  water  for  "  domestic  purposes  " 
is,  as  described  above,  which  a  riparian  proprietor  may  satisfy 
without  regard  to  the  rights  and  needs  of  proprietors  below. 
In  the  opinion  of  the  Supreme  Court  of  Illinois,  in  the  case  of 
Evans  vs.  Merriweather,^  this  subject  was  discussed  at  great 
length  as  to  whether  water  for  the  purpose  of  irrigation 
is  a  natural  or  an  artificial  want,  and  it  was  there  held 
to  be  dependent  upon  the  circumstances,  locality,  etc.;  and  it 
was  also  held  that,  in  reference  to  the  State  of  Illinois,  because 
that  State  was  within  the  rain  belt,  it  was  an  artificial  want;  for 
it  was  a  want  that  had  for  its  object  simply  the  comfort,  conven  - 
ience  or  prosperity  of  the  riparian  proprietor.     But,  upon  the 


I  Colborn  vs.  Richards,  13  Mass.         ~  I1)i<l;  Union  Mill  Co.  vs.  I'crris, 
420;  Cook   vs.    Hull,  3    Pick,  269;       2  Saw.  176. 

Anthony  vs.  Lapliani,  ,5  Pick.  175;  :i  Scrim.  .496.     Sec  also  (juotation 

from  o|)inion  .ante  section  9. 


108  COMMON    LAW    THEORIES.  [§  69. 

other  hand,  the  Court  held  that  in  a  country  differently  situated 
from  that  State,  with  a  hot  arid  climate,  water  for  irrigation 
would  be  a  natural  want,  from  the  fact  that  its  application  was 
absolutely  indispensable  to  the  cultivation  of  the  soil.  But 
the  Supreme  Court  of  California  holds  for  that  State,  which  is 
within  the  arid  region,  in  the  case  of  lyearned  vs.  Tange" 
man,^  that  the  use  of  water  for  the  purpose  of  irrigation,  as 
between  riparian  owners  upon  the  same  stream,  is  not  identi- 
cal or  co-extensive  with  the  right  to  use  it  for  watering  cattle 
and  other  like  domestic  purposes,  and  hence  it  was  an  extra- 
ordinary use.  That  action  was  brought  by  one  riparian  pro- 
prietor against  another  whose  lands  were  situated  upon  the 
banks  of  the  same  stream,  higher  up  than  the  lands  of  the 
plaintiff.  The  defendant  had  diverted  the  waters  of  the 
stream  for  the  purpose  of  irrigating  his  own  lands,  and  had 
thereby  deprived  the  plaintiff  of  a  portion  of  the  water  to 
which  he  was  entitled,  and  of  which  the  plaintiff  complained. 
At  the  trial  of  the  case  below,  the  judge  instructed  the  jury, 
among  other  charges,  that;  "If  they  believed  from  the  evi- 
dence that  the  defendant  was  a  riparian  proprietor  and  used 
the  water  of  the  stream  for  the  purpose  of  irrigating  his  lands 
and  used  no  more  than  was  necessary  for  that  purpose,  and 
returned  the  surplus  water  after  such  use  into  the  channel, 
then  they  should  return  a  verdict  tor  the  defendant."  This 
instruction  was  given  upon  the  assumption  that  the  right  of  a 
riparian  proprietor  to  use  the  water  of  a  stream  for  the  irri- 
gation of  his  lands  is  identical  with  the  natural  right  of  a 
riparian  proprietor  to  use  the  water  for  his  cattle  and  for  other 
strictly  domestic  purposes,  and  that  the  defendant  was  entitled 
to  divert  and  consume  all  the  water  which  was  necessary  for 
his  purpose,  even  though  it  took  all  of  the  water  of  the  stream. 
But  the  Supreme  Court  of  that  State  in  reversing  the  judg- 
ment, and  ordering  a  new  trial,  referring  to  the  above  quoted 
instruction  said:  "  This  was  error,  for  by  it  the  jury  were  in 
effect  told  that  the  defendant  was  entitled  to  divert  and  use  all 
of  the  water  of  the  stream,  if  necessary  for  the  irrigation  of  his 

1  65  Cal.,  334;  4  Pac.  Rep.,  191. 


^  69,  70.]  COMMON    LAW    THEORIES.  109 

land,  without  regard  to  the  wants  or  necessities  of  the  other 
riparian  proprietors." 

It  may  be  easily  perceived  that  a  great  majority  of  the 
early  judicial  tribunals  in  this  country,  in  a  large  number  of 
cases,  in  expounding  the  rights  of  riparian  proprietors  to 
use  the  water  of  natural  streams,  have  made  this  dis- 
tinction between  one  kind  of  use  of  water  and  another, 
and  have  placed  this  use  for  irrigating  land  as  one  to  satisfy 
artificial  wants,  although  the  terms  natural  and  artificial 
wants  do  not  seem  to  have  been  employed  in  this  country  until 
used  by  the  Court  in  the  case  of  Evans  vs.  Merriweather, 
cited  above. ^ 


§  70.  Same.— English  Doctrine.  —  So  also  in  all  the 
decisions  of  England,  although  the  term,  "natural  and 
artificial  wants"  does  not  seem  to  be  used,  the  Courts  hold 
that  the  use  of  water  for  the  purpose  of  irrigation,  if  permitted 
to  be  exercised  at  all,  can  only  be  exercised  by  one  riparian 
proprietor  so  that  the  rights  of  any  of  the  other  proprietors 
will  not  be  prejudiced  or  infringed  upon.^  However,  the  use 
of  water  for  the  purpose  of  irrigation  is  practically  unknown 
in  England,  as  compared  with  its  use  for  that  purpose  in  the 
arid  regions  of  the  United  States,  or  even  in  some  of  the 
English  possessions — India  and  Australia,  That  country 
having  small  rivers,  and  a  damp  humid  climate  with  plenty 
of  rainfall,  has  never  found  it  necessary  to  use  the  water 
in  her  natural  streams  for  the  purposes  of  irrigation  as 
have  certain  portions  of  the  United  States.      But,  as  England 


1  Meyer,  etc.,  vs.  Coinin.  vSpring  Biiig.,  379;  Strutt  vs.  Boviiigtoii,  5 
Garden.,  7  Barr.,  (Penn.)328;  Pugh  Esp.,  56;  Hall  vs.  Swift,  6  Scott, 
vs.  Wheeler,  2  Dev.  and  Bat.  N.  C.  167;  Chasemore  vs.  Richards,  7  H. 
50;  Evans  vs.  Merriweather,  3  L.  Cases,  349;  Embrey  vs.  Owen, 6 
Scam.,  496;  Colburn  vs.  Richards,  Exch.,  352;  Sampson  vs.  Iloddi- 
13  Mass.,  420;  Anthony  vs.  Lap-  not,  i  Com.  B.  N.  S.,  590;  Wood 
ham,  5  Pick.,  175;  Blaiichard  vs.  vs.  Waud,  3  Exch.,  748;  Gale  and 
Baker,  8  Green,  253;  Arnold  vs.  Wliat  on  Easements,  284;  Domat 
Foot,  12  Wend.,  330.  Pub.  Law,  i,  2,  8,  11. 

2  Green     Slade     vs.    Holiday,    6 


110  COMMON    LAW   THEORIES.  [§  70. 

is  the  source  from  which  we  obtain  the  principles  of  law 
known  in  the  history  of  jurisprudence  as  the  common  law,  we 
naturally  turn  to  that  country  to  learn  what  were  her  ideas 
upon  the  subject  of  irrigation  and  her  rules  governing  the 
same.  Owing  to  the  comparatively  unknown  practice  of  irri- 
gation in  England,  we  find  that  the  cases  decided  in  that  country 
are  few  as  compared  with  the  number  of  decisions  in  this 
country,  in  which  the  controversy  has  been  in  respect  to 
the  diversion  of  water  from  a  water-course  for  the  purpose  of 
irrigating  the  land,  and  also  that  the  English  law  upon  this 
subject  is  to-day  unsettled.  Nevertheless,  the  authorities  seem 
to  agree  upon  two  propositions,  and  these  are,  that  the  water 
of  a  natural  stream  cannot  be  so  diverted  to  the  material 
diminution  of  the  quantity  of  water  which  naturally  flows  in 
the  water-course  by  one  riparian  proprietor  to  the  prejudice 
and  injury  of  the  rights  of  any  of  the  others;  and,  that  the 
water  must  not  be  diverted  at  all,  unless  it  be  again  returned 
into  the  water-course  with  no  other  diminution  than  that 
caused  by  absorption  and  evaporation.^  In  a  case  cited  by 
Mr.  Angell  in  his  work  on  water-courses, ^  an  action  was 
brought  for  the  disturbance  of  a  water-course  and  the  plain- 
tiff was  non-suited,  on  the  ground  that  the  water  after 
being  used  for  irrigation  was  returned  to  the  channel.  But 
afterwards  the  Court  of  King's  Bench  set  aside  the  non-suit, 
because  it  was  shown  that  a  portion  of  the  water  was  lost  by 
the  process  of  evaporation  and  absorption.  This  case  would 
seem  to  hold  that  the  common  law  did  not  recognize  at  all 
the  right  to  use  the  water  of  natural  streams  for  the  purpose 
of  irrigation,  for  without  the  loss  of  some  portion  of  the  water 
by  absorption  and  evaporation  its  use  for  that  purpose  would 
be  a  physical  impossibility.^ 


1  Green  Slade  vs.  Halliday,  6  7  H.  L.  349;  Enibrey  vs.  Owen,  6 
Bincr.,  379;  19  Eng.  Com.  Law,  106;  Exch.,352;  Sampson  vs.Hoddinot, 
Strutt  vs.  Bovington,  5  Esp.,  5;  i  Com.  B.  N.  S..  590;  Mason  vs. 
Hall  vs.  Swift,  6  Scott,  167.  Hill,  3  B.  &  Ad.,  304;  5  B.  &  Ad., 

2  Section  120.  i;  Wood  vs.  Waud,  3   Exch.,  748. 

3  See  also  Chasemore  vs. Richards 


§  71. J  COMMON    LAW    THEORIES.  Ill 

§  71.  Same. — Coiltiuueil. — The  present  English  law  upon 
the  subject  seems  to  be  summed  up  in  the  case  of  Chasemore 
vs.  Richards,^  in  which  Park,  B.,  after  discussing  the  case  of 
Wood  vs.  Waud,  in  which  it  was  held  that  a  very  liberal  use 
of  the  stream  for  the  purposes  of  irrigation  is  permitted  in 
America,  says:  "It  is  not  clear  that  a  user,  to  that  extent, 
would  be  permitted;  nor  do  we  mean  to  lay  down  that  it  would 
in  every  case  be  deemed  a  lawful  enjoyment  of  the  water  if 
it  was  again  returned  into  the  river  with  no  other  diminution 
than  that  which  was  caused  by  absorption  and  evaporation 
attendant  on  the  irrigation  of  the  lands  of  the  adjoining  pro- 
prietor. This  must  depend  upon  the  circumstances  of  each 
case.  On  the  one  hand,  it  could  not  be  permitted  that  the 
owner  of  a  tract  of  many  thousands  of  acres  of  porous  soil, 
abutting  on  one  part  of  the  stream,  could  be  permitted  to  irri- 
gate them  continually  by  canals  and  drains,  and  so  cause  a 
serious  diminution  of  the  quantity  of  the  water,  though  there 
was  no  other  loss  to  the  natural  stream  than  that  arising  from 
the  necessary  absorption  and  evaporation  of  the  water 
employed  for  that  purpose;  on  the  other  hand,  one's  common 
sense  would  be  shocked  by  supposing  that  a  riparian  owner 
could  not  dip  a  watering  pot  into  the  stream  in  order  to  water 
his  garden,  or  allow  his  family  or  his  cattle  to  drink  of  it. 
It  is  entirely  a  question  of  degree,  and  it  is  very  difficult, 
indeed  impossible,  to  define  precisely  the  limits  which  sepa- 
rate the  reasonable  and  permitted  use  of  the  stream  from  its 
wrongful  application;  but  there  is  often  no  difficulty  in 
deciding  whether  a  particular  case  falls  within  the  permitted 
limits  or  not."  And  further  on,  he  says:  "The  right  to  have 
the  stream  to  flow  in  its  natural  state,  without  diminution  or 
alteration,  is  an  incident  to  the  property  in  the  land  through 
which  it  passes;  but  flowing  water  is  j2!>?^/5//V/7>/r/.y,  not  in  the 
sense  that  it  is  botiuni  vacans  to  which  the  first  occupant  may 
acquire  an  exclusive  right,  but  that  it  is  public  and  common, 
in  this  sense  only:  that  all  may  reasonably  use  it  who  have 
right  of  access  to  it;  that  none  can  have  any  property  in  the 

1  7  II.  L.  Cas.  349. 


112  COMMON    LAW    THEORIES.  [§  71,  72. 

water  itself,  except  in  the  particular  portion  which  he  may 
choose  to  abstract  from  the  stream  and  take  into  his  possession, 
and  that  during  the  time  of  his  possession  only.  But  each 
proprietor  of  the  adjacent  land  has  the  right  to  the  usufruct  of 
the  stream  which  flows  through  it.  This  right  to  the  benefit 
and  advantage  of  the  water  flowing  past  his  land  is  not  an 
absolute  and  exclusive  right  to  the  flow  of  all  the  water  in  its 
natural  state.  If  it  were  the  argument  of  the  learned  counsel 
that  every  obstruction  of  it  would  give  a  cause  of  action  would 
be  irrefragible;  but  it  is  a  right  only  to  the  flow  of  the  water, 
and  the  enjoyment  of  it,  subject  to  the  similar  rights  of  all 
the  proprietors  of  the  bank  on  each  side  to  the  reasonable 
enjoyment  of  the  same  gift  of  Providence.  It  is  only,  there- 
fore, for  an  unreasonable  and  unauthorized  use  of  this  common 
benefit  that  an  action  will  lie;  for  such  a  use  it  will." 

§  72.  Siime. — Early  American  Doctrine. — During  the  early 
history  of  this  country  when  the  population  was  comparatively 
sparse,  even  in  the  Eastern  States,  the  right  to  use  the  water 
for  the  purposes  of  irrigation  was  recognized  there  to  a  very 
wide  latitude.^  One  of  the  earliest  cases  in  this  country 
upon  this  subject  is  that  of  Perkins  vs.  Dow,^  and  in  that  action 
it  was  decided  by  the  Supreme  Court  of  Connecticut  that  a 
riparian  proprietor  may  take  the  water  from  a  stream  running 
through  his  land  to  fertilize  his  meadows;  provided  that  he 
does  not  deprive  the  adjoining  proprietors  below  of  a  sufficiency 
of  water  for  kitchen  purposes,  or  foi  watering  their  cattle;  and 
pirovided  the  water  which  is  diverted  for  irrigation  shall 
(unless  absorbed  on  the  land^  be  returned  to  its  natural  channel 
before  the  stream  leaves  his  land.  And  if  a  person  by 
absorption  on  his  own  land  can  dispose  of  the  whole  of  the 
water,  excepting  only  a  bare  sufficiency  for  the  purposes 
before  mentioned,  he  has  the  prior  right  because  he  is  first  on 
the  stream  and  has  the  first  opportunity.     Also  in  the  case  of 

1  Gould  on  Waters,  section  205,  Root,    (Conn.)    535;    Howard   vs. 

206;    II    Am.    and   Eng.    Enc.    of  Mason,    i    Root,    (Conn.)   537; 

Law,   846;    Weston    vs.    Alden,   8  Blanchard  vs.  Baker,  8  Maine,  266. 

Mass.,    136;    Perkins    vs.    Dow,    i  2  i  Root,  (Conn.)  535. 


,:j  72,  73.]  COMMON    LAW    THEORIES.  113 

Weston  vs.  Alden,^  the  Supreme  Court  of  Massachusetts  held 
that,  "A  man  owning  a  close  on  an  ancient  brook  may  law- 
fully use  the  water  thereof  for  the  purposes  of  husbandrj',  as 
watering  his  cattle  or  irrigating  his  close;  and  he  may  do 
this  either  by  dipping  water  from  the  bank  and  pouring  it 
upon  the  land  or  by  making  small  sluices  for  the  same  pur- 
pose; and  if  the  owner  of  a  close  below  is  damaged  thereby  it 
is  damnum  absque  injuria^  This  case  essentially  holds,  that 
the  upper  riparian  proprietor  on  a  stream  has  a  right  to  use 
all  the  water  of  a  stream  without  any  regard  to  the  wants  of 
those  below,  and  not  even  leaving  enough  in  the  stream  for 
their  "  domestic  purposes."  That  such  was  not  the  English 
rule  has  been  shown  above,  and  that  such  was  ,not  the  later 
rule  of  the  Eastern  States  which  have  adopted  the  common 
law  upon  this  subject  will  be  seen  in  the  following  section. 


§73.  Siimo.  —  Latin    Americjiii    Doctrine. — Anthorities 

Disciissert. — As  the  Eastern  States  became  more  thickly  set- 
tled and  the  demand  for  water  became  greater,  the  same  States 
which  had  formerly  allowed  a  very  liberal  use  of  water  for  the 
purpose  of  irrigation  graduall}^  restricted  that  use,  until  they 
had  practically  adopted  all  the  common  law  rules  upon  the 
subject.^  And,  according  to  the  later  decisions  of  the 
common  law  authorities  of  this  countr}^  this  use  of  the  water 
comes  properly  under  the  head  of  extraordinary  uses,  to 
r^upply  an  artificial  want;  and  the  use  of  the  stream  for  this 
purpose  b}'  one  riparian  proprietor  upon  the  same  must  be 
reasonable  and  must  not  materially  injure  or  effect  the  rights 


1  7  Mass.,  136.  purposes   of    irrigation,  when    its 

2  II    Am.  &   P^ng.    Enc.   of    Law  use   is   not   indispensable,    but   is 

848;     Colburn     vs.    Richards,     13  resorted    to    for    the    purpose   of 

Mass.,  420;  Cook  vs.  Hull,  3  Pick.,  increasing     the    products    of    the 

269;  .\nthony  vs.  Laphani,  5  Pick.,  soil,  must  be   subordinate   to   the 

175;   Hlanchard    vs.  Baker,  8    Me.,  rights  of  a  co-proprietor  to  supply 

253.  his  natural  wants,  and  those  of  his 

In    Baker    vs.   Brown,    55    Tex.,  famil)',     tenants     and     stock     by 

377,    the   Court   held:   "  That   the  using    the    water     for     necessary 

right    to    use   the    water    for   the  domestic  purposes. 


114 


COMMON    LAW   THEORIES. 


[§V3. 


of    any   of    the    other   riparian   proprietors   upon   the   same 
stream.  1 

In  regard  to  the  early  Connecticut  decisions  quoted  above, ^ 
in  the  opinion  of  Mr.  Chief  Justice  Swift,  in  Ingraham  vs. 
Hutchinson,-^  they  reverse  the  common  law,  and  are  repugnant 
to  a  statute  of  that  State  in  affirmance  of  that  law.  The 
Judge,  in  giving  the  opinion  of  the  Court,  and  referring 
directly  to  the  cases  cited  above,  says:  "It  was  decided,  that 
a  man  may  divert  a  stream  of  water  to  manure  and  enrich  his 
meadows,  to  the  prejudice  of  a  mill  that  had  been  erected  on 
the  stream  below  m^re  than  twenty  years.  This  is  reversing 
the  common  law;  and  not  only  gives  to  the  upper  proprietors 
on  rivers  the  advantages  to  which  the  lower  are  entitled,  but 
denies  that  even  seventy  years  exclusive  enjoyment  of  water, 
in  a  particular  manner,  will  confer  an  absolute  right." 

This  rule,  restricting  the  use  of  water  for  irrigation,  is 
especially  true  when  the  rights  of  other  riparian  proprietors 
for  the  purpose  of  supplying  their  natural  wants  and  domestic 


1  Blanchard  vs.  Baker,  8  Maine, 
253,  266;  Davis  vs.  Getchell,  50  Id. 
604;  where  it  was  held  that  a 
diversion  of  a  large  portion  of  the 
waters  of  a  stream,  by  a  proprie- 
tor of  land  through  which  the 
water-course  ran,  rendered  him 
liable  to  an  action  on  the  case,  by 
a  proprietor  of  land  below,  from 
whom  the  water  is  thus  diverted; 
although  the  latter  thereby  sus- 
tains no  present  actual  damage. 
Newhall  vs.  Ireson,  8  Cush.,  595; 
Elliott  vs.  Fitchburg  Ry.  Co.,  10 
Cush.,  194;  Anthony  vs.  Lapham, 
5  Pick. ,175;  Cook  vs.  Hull,  3  Pick., 
269;  Paine  vs.  Woods,  108  Mass., 
160;  Garwood  vs.  N.  Y.  Cent.  Ry. 
Co.,  83  N.  Y.,  400,  405;  Farrell  vs. 
Richards,  30  N.  J.  Eq.,  511;  Union 
Mill  Co.  vs.  Ferris,  2  Saw.,  176; 
Ingraham  vs. Hutchinson,  2  Conn., 
584;  Wadsworth  vs.  Tillotson,    15 


Conn.,  366;  Gillett  vs.  Johnson,  30 
Conn.  180;  Randall  vs.Silverthorn, 
4  Penn.,  St.,  173;  Miller  vs.  Miller, 
9  Penn.  St.,  74;  Tolle  vs.  Correth, 
31  Texas,  362;  98  Am.  Dec,  540, 
note  and  cases  cited;  Fleming  vs. 
Davis,  37  Texas,  173;  Mud  Creek 
Irr.  Co.,  vs.  Vivian,  74  Texas,  170; 
Stein  vs.  Burden,  29  Ala.,  127;  24 
Ala.,  130;  Blessing  vs.  Blair,  45 
Ind.,  546;  Lux  vs.  Haggin,  69Cal., 
255;  Larned  vs.Tangeman,  65  Cal., 
334;  Ferrea  vs.  Knipe,  28  Cal.,  343; 
Perigay  vs.  Sellick,  79  Cal.,  568; 
Sharp  vs.  Hoffman,  79  Cal.,  404; 
Heath  vs.  Williams,  25  Maine,  209; 
43  .-\m.  Dec,  269,  note  and  cases 
cited;  Gould  on    Waters,  Sec.  217. 

2  Perkins  vs.  Dow,  i  Root,  535 
and  Howard  vs.  Mason,  i  Root, 
537,  2  Swift's  Dig.  87. 

3  2  Com.  584. 


§  73,  74.]  COMMON    LAW    THEORIES.  115 

necessities,  or  their  right  to  irrigate  their  own  lands,  are 
invaded,  unless  the  first  irrigator  has  gained  the  right  in  some 
mode  known  to  law,  as  by  grant  or  prescription.  In  other 
words,  at  common  law  the  right  to  use  water  for  irrigation  is 
subordinate  to  the  natural  wants  and  equal  with  all  other 
artificial  wants,  and  is  so  restricted  and  hemmed  in  by  the 
rules  of  that  law  that  its  practice,  as  the  same  is  known  in 
the  arid  regions  of  the  United  States,  is  rendered  almost  an 
impossibility.^ 

In  Gillett  vs.  Johnson  the  Court  thus  speaks  of  the  right 
of  the  defendant  to  use  tke  water  of  a  stream  to  irrigate  lands, 
as  limited  and  restricted:  "She  was  bound  to  apply  the  water 
in  such  a  reasonable  manner  and  quantity  as  not  to  deprive 
the  plaintifi"  of  a  sufficient  supply  for  his  cattle.  The  claim 
of  the  defendant  was,  that  she  had  a  right  to  divert  the  whole 
for  the  purpose  of  irrigation,  regardless  of  the  rights  of 
plaintiff.  Such  diversion  was  unreasonable,  and  therefore 
illegal." 

Also  in  another  case,  decided  by  the  Supreme  Court  of  New 
York,  the  parties  in  which  were  owners  of  adjoining  farms. 
On  the  farm  of  the  defendant,  within  five  or  six  rods  of  the 
land  of  the  plaintiff,  there  was  a  spring,  from  which  the  water 
in  its  natural  channel  ran  over  the  land  of  the  plaintiff.  The 
defendant  diverted  the  water  from  the  spring,  and  caused  it  to 
flow  upon  his  meadow  for  the  purpose  of  irrigation,  to  the 
extent  of  three  or  four  acres,  for  which  diversion  in  the  Court 
below  the  plaintiff  recovered  judgment.  In  rendering  the 
opinion  of  the  Supreme  Court,  on  appeal,  the  Chief  Justice 
said:  "The  defendant  has  a  right  to  use  so  much  as  is  neces- 
sary for  his  family  and  cattle,  but  he  has  no  right  to  use  it  for 
irrigating  his  meadow  if  thereby  he  deprives  the  plaintiff  of 
the  reasonable  use  of  the  water  in  its  natural  channel. "^ 

§  74  Same. — Chancellor  Kent's  Opinion. — One  of  the  most 
frequently  quoted  and  respected  American  writers  upon  this 
subject  is  Chancellor  Kent.     Writing,  as  he  did,  at  a  compar- 

1  In  Gillett  vs.  Johnson,  30  Conn.         2  See    also   Arnold    vs.    Foot,    12 
180.  Wend.  330. 


116  COMMON    LAW   THEORIES.  [§  74. 

atively  early  period  in  the  history  of  American  jurisprudence, 
and  before  statutory  enactments  and  case  law  had  invaded 
the  precincts  of  the  common  law  of  England  to  any  great 
extent  in  this  country,  and  standing  at  the  very  head  of  his 
profession  both  as  a  law  writer  and  expounder  of  the  law,  he 
certainly  can  be  quoted  as  among  the  very  highest  authori- 
ties of  his  day,  upon  this  subject  of  the  use  of  waters  of  natural 
streams  and  lakes  by  riparian  proprietors.  ' '  Every  pro- 
prietor," he  says,  "of  lands  on  the  banks  of  a  river  has 
naturally  an  equal  right  to  the  use  of  the  water  which  flows 
in  the  stream  adjacent  to  his  lands,  as  it  is  wont  to  run 
{^Currere  solebat),  zvithout  dimimdion  or  alteration.  No  pro- 
prietor has  a  right  to  use  the  water  to  the  prejudice  of  other 
proprietors  above  or  below  him,  unless  he  has  a  prior  right 
to  divert  it,  or  a  title  to  some  exclusive  enjoyment.  He  has 
no  propert)^  in  the  water  itself,  but  a  simple  usufruct  while  it 
passes  along.  Aqua  ciirrit  et  debit  currere  ut  ciirrere  solebat  is 
the  language  of  the  law.  Though  he  may  use  the  water 
while  it  runs  over  his  land  as  an  incident  to  the  land,  he  can- 
not unreasonably  detain  it  or  give  it  a?iother  direction,  and  he 
'}mist  return  it  to  its  ordinary  channel  when  it  leaves  his  estate. 
Without  the  consent  of  the  adjoining  proprietors,  he  cannot 
divert  or  diminish  the  quantity  of  water  which  would 
otherwise  descend  to  the  proprietors  below,  nor  throw  the 
water  back  upon  the  proprietors  above,  without  a  grant,  or  an 
uninterrupted  enjoyment  of  twenty  years  which  is  evidence 
of  it.  This  is  the  clear  and  settled  doctrine  upon  the  subject, 
and  all  the  difficulty  that  arises  consists  in  the  application. 
The  owner  must  so  use  and  apply  the  water  as  to  work  no 
material  injur}^  or  annoyance  to  his  neighbor  below  him,  who 
has  an  equal  right  to  the  subsequent  use  of  the  same  water  ; 
nor  can  he,  by  dams  or  any  obstruction,  cause  the  water 
injuriously  to  overflow  the  grounds  and  springs  of  his 
neighbor  above  him." 

.  Then  follows  the  passage  that  is  often  quoted  to  prove  that 
water,  under  the  common  law,  cannot  be  employed  for  irriga- 
tion. It  is  as  follows  :  "Streams  of  water  are  intended  for 
the  use  and  comfort  of  man;  and  it  would  be  unreasonable  and 
contrary  to  the    universal  sense  of  mankind  to  debar  every 


§  74,  75.]  COMMON    LAW    THEORIES.  117 

riparian  proprietor  from  the  application  of  the  water  to  domes- 
tic, agricultural,  and  manufacturing  purposes,  provided  the 
use  of  it  be  made  under  the  limitations  which  have  been 
mentioned;  and  there  will  no  doubt  inevitably  be,  in  the 
exercise  of  a  perfect  right  to  the  use  of  the  water,  some 
evaporation  and  decrease  of  it,  and  some  variations  in  the 
weight  and  velocity  of  the  current.  But,  de  inhiimis  non  curat 
lex,  and  a  right  of  action  by  the  proprietor  below  would  not 
necessarily  follow  from  such  consequences,  but  would  depend 
upon  the  nature  and  extent  of  the  complaint  or  injury  and 
the  manner  of  using  the  water.  All  that  the  law  requires  of 
the  party  by  or  over  whose  land  a  stream  passes  is,  that  he 
should  use  the  water  in  a  reasonable  manner,  and  so  as  not  to 
destroy,  or  render  useless,  or  materially  diminish  or  affect  the 
application  of  the  water  by  the  proprietors  above  or  below  on 
the  stream."^ 

§  75.  California  Construction  of  Above — Conclusions. — 

Referring  to  the  above  passage  from  Kent,  the  Supreme  Court 
of  California,  in  the  case  of  Lux  vs.  Haggin,^  said:  "It  seems 
to  us  that  the  foregoing,  although  a  very  distinct  statement 
of  the  general  proposition,  ought  not  to  be  taken  literally, 
unless  the  words  'material  injury'  be  impressed  with  the 
signification  the  equivalent  of  a  substantial  deprivation  of 
capacity  in  a  lower  proprietor  to  employ  the  water  for  useful 
purposes.  The  adjective  is  prefixed  to  injury,  and  the  words 
seem  to  have  reference  to  the  enjoyment  of  the  use  by  the 
inferior  owner,  not  to  his  mere  abstract  right  to  the  use  as 
against  others  than  riparian  owners,  and  to  intimate  that  he 
cannot  complain  of  a  reasonable  exercise  of  the  use  by  another 
who  possesses  the  general  right  in  common  with  himself. 
The  passage  as  a  whole  may  fairly  be  said  to  convey  the  idea 
tliat  water  may  be  used  for  agricultural  or  manufacturing 
purposes  when  such  use  does  not  materially  deprive  the  lower 
proprietor  of  water  either  for  drinking  or  agriculture."^ 
From  the  above  it  will  therefore  appear  that  in  case  of  any 

'  Kent  Com.,  43q,  440.  .'<  vSee  note  (a)  13111  Ivil.  KcmiI,  441 

269  Cal.  225;  10  I'ac.  Rc'i).  756.  ami  cases  cited. 


118 


COMMON    LAW    THEORIES. 


§75.] 


diversion  of  the  water  from  a  natural  watercourse,  by  one 
riparian  proprietor,  even  without  actual  injury  to  any  of  the 
other  riparian  owners  upon  the  stream,  the  common  law 
authorities  hold  that  a  cause  of  action  would  lie  against  the 
divertor,  on  the  ground  that  a  right  had  been  infringed  upon. 
This  is  a  doctrine  powerfully  sustained  by  the  American  com- 
mon law  authorities.  Also,  that  for  any  purpose  whatsoever, 
for  any  essential  diminution  of  water  which  Nature  directed 
should  flow  in  a  certain  channel,  the  law  will  interfere;^  for  as 
it  is  said  in  the  case  of  Tillotson  vs.  Smith,  supra,  "It  is  a  long 
established  principle  of  the  common  law  that  wherever  any 
act  injures  another's  right,  and  would  be  evidence  in  future 
in  favor  of  the  wrong  doer,  an  action  may  be  maintained  for 
an  invasion  of  a  right,  without  proof  of  any  specific  injury.  "^ 


1  Woodman  vs.  Tufts,  9  N.  H.  88; 
Bolliver  Mfg.  Co.  vs.  Neponset 
Mfg.  Co.,  16  Pirk.  241;  Crocker  vs. 
Bragg,  10  Wend.  260,  where  it  was 
held,  that  a  stream  of  water  can- 
not be  diverted  from  its  natural 
course,  without  the  consent  of  the 
owner,  over  or  by  whose  land  it 
passes.  Although  such  owner  may 
not  require  the  whole  or  any  part 
of  the  water  for  his  own  use.  See 
also  Baldwin  vs.  Caulkins,  10 
Wend.  167;  Heath  vs.  Williams, 
25  Maine,  209;  43  Am.  Dec.  269; 
Whipple  vs.  Cumberland  Mfg.  Co. 
2  Story  Ct.  Ct.,  661;  Branch  vs 
Doane,  17  Conn.  402;  iS  Id.  233; 
Parker  vs.  Griswold,  17  Conn.  288; 
9  L.  R.  A.  810,  note  and  cases 
cited;  Lind  vs.  New  Bedford,  121 
Mass.  286,  290;  Chapman  vs. 
Thames  Mfg.  Co.,  13  Conn.  269; 
Woodman  vs.  Tufts,  9  N.  H.  88; 
Bliss  vs.  Rice,  17  Pick.  23;  Blan- 
chard  vs.  Baker,  8  Green,  Me.  253; 
Webb  vs.  Portland  Mfg.  Co.,  3 
Sumn.  189;  Gould  on  Waters,  Sec. 


405  and  cases  cited;  Newhall  vs. 
Ireson,  8  Cush.  595;  Stowell  vs. 
Lincoln,  11  Gray,  434;  Bateman  vs. 
Hussey,  12  Maine,  407;  Monroe  vs. 
Stickney,  48  Id.  462;  Cowles  vs. 
Kidder,  24  N.  H.  364,  379;  Bassett 
vs.  Saulsbury  Mfg.  Co.,  28  N.  H. 
438;  Gerrish  vs.  New  Market  Mfg. 
Co.,  30  N.  H.  479,  484;  Amoskeag 
vs.  Goodale,  46  N.  H.  53;  Chatfield 
vs.  Wilson,  27  Vt.  670;  Tuthill  vs. 
vScott,  43  Vt.  525;  Blumleigh  vs. 
Dawson,  i  Gilman,  544;  Holme  vs. 
Shreve,  3  Green  Ch.  116;  Ripka 
vs.  Sergent,  7  Watts.  &  S.  11; 
Miller  vs.  Miller,  9  Penn.  St.  74; 
Delaware  Canal  Co.  vs.  Terry,  27 
Penn.  St.  143;  Graves  vs.  Sholl,  42 
Penn.  St.  58;  Stein  vs.  Borden,  42 
Ala.  130;  Tootle  vs.  Clifton,  22 
Ohio  St.  274;  Mitchell  vs.  Barry, 
26  Up.  Can.  Q.  B.  416;  Hendrick 
vs.  Cook,  4  Georgia,  241;  Tillotson 
vs.  Smith,  32  N.  H.  90,  96;  3  Sum- 
ner, 189. 

2  But  see    Bullard   vs.    Saratoga 
Mfg.  Co.,  77  N.  Y.  525. 


[§76. 


COMMON    LAW    THEORIES. 


119 


§7G.    Same.— " Reasonable  Use"  Discussed.— It  is  laid 

down  in  the  books  that  any  riparian  owner,  under  the  com- 
mon law  rules  ma}^  make  what  is  called  a  "  reasonable"  use 
of  the  stream  passing  by  or  through  his  lands  for  extraordi- 
nary purposes,  or  as  some  authors  put  it,  "for  purposes 
which  are  not  domestic."^  Now  the  question  arises,  what  is 
a  reasonable  use?  But  in  general  the  rule  as  laid  down  upon 
the  subject  is,  that  the  reasonable  usefulness  of  a  quantity  of 
water  for  an 3^  of  these  purposes  is  always  relative.  It  does 
not  depend  upon  the  convenience  of,  or  the  profitable  results 
to,  any  particular  proprietors,  but  upon  the  reasonable  use, 
reference  being  had  to  the  needs  of  all  the  other  proprietors  on 
the  stream.  Also  it  depends  upon  the  size  of  the  stream,  the 
fall  of  the  water,  its  volume,  velocity,  and  prospective  rise  and 
fall,-  the  character  of  the  soil,  the  number  of  proprietors,  the 
amount  of  water  needed  to  irrigate  the  lands  per  acre,  and  a 


1  Washburn  on  Easements,  p. 
216;  Angell  on  W.  C.  Sec.  95;  3 
Kent.  Com.  440;  Elliot  vs.  Fitch- 
burg  Ry.  Co.,  10  Cush.  191,  195; 
Tyler  vs.  Wilkinson,  4  Mason  397; 
Union  Mill  Co.  vs.  Ferris,  2  Sawyer 
176;  Evans  vs.  Merriweather,  3 
Scam.  492;  Miller  vs.  Miller,  9 
Penn.  St.  174;  Arnold  vs.  Foot,  12 
Wend.  330;  Embrey  vs.  Owen,  6 
Exch.  352;  Nultall  vs.  Bracewell, 
L.  R.  2,  Exch.  i;  Minn,  vs  Gil- 
mour.  12  Moore,  P.  C.  131,  156; 
Gerrish  vs.  New  Market  Mfg.  Co., 
30  N.  H.  478;  Tillotson  vs.  Smith, 
32  N.  H.  90;  Norway  Plains  Co. 
vs.  Bradley,  52  N.  H.  86;  Holden 
vs.  Lake  Co.,  53  N.  H.  552;  Snow 
vs.  Parsons,  28  Vt.  450;  Mason  vs. 
Hill,  5  H.  &  Ad.  i;  Barrett  vs.  Par- 
sons, 10  Cush.  367;  Wood  vs.  Waud, 
3  ICxch.  748;  Cory  vs.  Daniels,  8 
Met.  466;  Pitts  vs.  Lancaster  Mills, 
13  Met.  156;  Therber  vs.  Martin, 
2  Gray  394;  Tourtellot  vs.  Phelps, 
4(jray  370;  Chandler  vs.  Ilowland, 


7  Gray  348,  Wood  vs.  Edes,  2  Allen 
578;  Twiss  vs.  Baldwin,  9  Conn. 
291;  Wadsworth  vs.  Tillotson,  15 
Conn.  366;  Agawan  Canal  Co.  vs. 
Edwards,  3  O'Con.  476;  Merrit  vs. 
Brinkerhoff.  17  Johns.  306. 

2lbid;  Timm  vs.  Bear,  29  Wis.  254, 
where  it  was  held:  "as  between 
an  upper  and  a  lower  mill  on  the 
same  stream,  what  constitutes  a 
reasonable  use  of  water  by  the 
upper  mill,  depends  on  the  partic- 
ular circumstances  of  each  case; 
such  as  the  nature,  extent  and 
necessity  of  the  uae,  the  manner  in 
which  the  water  is  applied,  the 
previous  usage,  the  nature  and 
condition  of  the  improvements 
upon  the  stream,  the  volume  and 
velocity  of  the  water,  and  its  pro- 
spective rise  and  fall,  the  nature 
and  situation  of  the  lower  mill 
and  pond,  the  capacity  of  the  lat- 
ter, and  the  practicability  of  en- 
larging it."— P'arrell  vs.  Richards, 
30  N.J.  p:q.  511. 


120  COMMON    LAW    THEORIES.  [§  76. 

variety  of  other  circumstances  and  conditions  surrounding 
each  particular  case.^  No  precise  rule  has  ever  been  laid 
down,  nor  can  one  be  laid  down,  that  will  govern  every  case, 
especially  for  the  use  of  water  for  the  purpose  of  irrigation. 
As  the  Court  said  in  the  case  of  Elliot  vs.  Fitchberg  Ry. 
Co. 2  upon  this  point,  "To  take  a  quantity  of  water  from  a 
large  running  stream  for  agricultural  or  manufacturing  pur- 
poses would  cause  no  sensible  or  practicable  diminution  of 
the  benefit,  to  the  predjudice  of  a  lower  proprietor;  whereas 
taking  the  same  quantity  from  a  small  running  brook  passing 
through  many  farms  would  be  of  great  and  manifest  injury 
to  those  below,  who  need  it  for  domestic  supply  or  for  water- 
ing cattle;  and  therefore  it  would  be  an  unreasonable  use  of  the 
water,  and  an  action  would  lie  in  the  latter  case  and  not  in 
the  former."  And  again  in  the  same  case  the  Court,  refer- 
ring to  the  use  of  water  for  irrigation,  says:  "It  has  some- 
times been  made  a  question  whether  a  riparian  proprietor  can 
divert  water  from  a  running  stream  for  purposes  of  irrigation. 
But  this,  we  think,  is  an  abstract  question  which  cannot  be 
answered  either  in  the  affirmative  or  negative  as  a  rule 
applicable  in  all  cases.  That  a  portion  of  the  water  of  a 
stream  ma}^  be  used  for  purposes  of  irrigating  land  we  think 
is  well  established  as  one  of  the  rights  of  the  proprietors  of 
the  soil  along  or  through  which  it  passes.  Yet  a  proprietor 
cannot  under  color  of  that  right,  or  for  the  actual  purpose  of 
irrigating  his  own  land,  wholly  abstract  or  divert  the  water- 
course, or  take  such  an  unreasonable  quantity  of  water,  or  make 
such  unreasonable  use  of  it,  as  to  deprive  other  proprietors  of 
the  substantial  benefits  which  they  might  derive  from  it  if  not 
diverted  or  used  unreasonabl3^  The  point  may,  perhaps,  be 
best  illustrated  by  extreme  cases.  One  man,  for  instance, 
may  take  water  from  a  perennial  stream  of  moderate  size  by 
means  of  buckets  or  a  pump — for  the  mode  is  not  material — 
to  water  his  garden.  Another  may  turn  a  similar  current 
over  a  level  tract  of  sandy  soil  of  great  extent,  which  in  its 
ordinary   operation   will   nearly   or  quite    absorb  the  whole 

Jjones  vs.  Adams,  20  Nev.  78;  6  ^10  Cush.  191,   194;  57  Am.  Dec. 

Pac.  Rep.  442,  444.  85. 


^  76, 77.]  com:>ion  law  theories.  121 

volume  of  the  stream,  although  the  relative  positions  of  the 
land  and  stream  are  such  that  the  surplus  water,  when  there 
is  any,  is  returned  to  the  bed  of  the  stream.  The  one  might 
be  regarded  as  a  reasonable  use,  doing  no  perceptible  damage 
to  any  lower  proprietor,  while  the  other  would  nearly 
deprive  him  of  the  whole  beneficial  use,  and  yet  in  both 
the  water  would  be  used  for    irrigation." 

This  subject,  as  treated  bj'  the  common  law,  is  summed 
up  in  the  opinion  rendered  bj'  the  Supreme  Court  of  Nevada 
in  a  comparatively  recent  case^  which  reads  as  follows:  "Under 
the  rules  of  the  common  law  the  riparian  proprietors  would  all 
have  the  right  to  a  reasonable  use  of  the  waters  of  a  stream 
running  through  their  respective  lands  for  the  purpose  of  irri- 
gation. It  is  declared  in  all  of  the  authorities  upon  the  subject 
that  it  is  impossible  to  lay  down  the  precise  rule  which  will  be 
applicable  to  all  cases.  The  question  must  be  determined 
in  each  case  with  reference  to  the  size  of  the  stream,  the 
velocity  of  the  water,  the  character  of  the  soil,  the  number 
of  proprietors,  the  amount  of  water  needed  to  irrigate  the 
lands  per  acre,  and  a  variety-  of  other  circumstances  and 
conditions  surrounding  each  particular  case;  the  true  test  in 
all  cases  being  whether  the  use  is  of  such  a  character  as  to 
materially  affect  the  equally  beneficial  use  of  the  water  of 
the  stream  by  other  proprietors."  The  question  as  to 
whether  the  w^ater  has  been  used  reasonably  is  one  of  fact  for 
the  jury  to  determine  from  all  the  circumstances  coimected 
with  the  case.^ 

§  77.  Same— Conclusions.— So  from  the  above  conclusions 
which  are  supported  by  the  authorities  cited  it  is  plain  that 
under  the  common  law  the  quantity  of  water  which  any  one 
proprietor  may  divert  for  the  purpose  of  irrigation  depends 
upon  all  the  circumstances  of  each  particular  case;  bnt  the 
amount  must  not  be  greater  than  that  which  each  of  the  (Jther 
proprietors  may  divert  to  irrigate  their  lands,  from  the  lact 
that  all  their  rights  in  and  to  the    waters  of  the  stream  are 

ijones  vs.  Adams,  19  Nev.  7B,  83.         Sibid;  Hayes  vs.  Wal.Iroii.  .| »  N. 

II.  580. 


122  COMMON    LAW    THEORIES.  §  77,  78- 

equal.  No  rights  of  the  other  proprietors  must  be  infringed 
upon,  or  an  action  against  the  party  diverting  the  water  will 
lie  at  law  for  damages,  or  in  equity  for  an  injunction.  It 
is  plain  therefore  why,  in  the  arid  west,  (whose  agricultural 
resources  depend  almost  entirely  upon  the  extent  of  irrigation) 
the  common  law  was  found  to  be  a  very  imperfect  and 
impracticable  guide  governing  the  rights  to  waters;  and 
why  in  the  States  formed  from  the  country  lying  west  of  the 
looth  meridian  the  common  law  should  be  modified  in  all, 
and  entirely  abolished  in  some.^  According  to  the  literal 
construction  of  the  common  law  water  might  under  certain 
circumstances  be  diverted  from  natural  rivers  and  streams 
by  riparian  proprietors  for  the  purpose  of  irrigation,  but  its 
use  for  this  purpose  was  so  restricted  and  hemmed  in  by  the 
rules  of  that  law  as  to  defeat  its  practical  application. 

§78.    Same.— Diversion  of  SiiMerraueaii  Waters.— The 

common  law  theories  of  the  diversion  of  waters  from  surface 
streams  and  water-courses  have  been  discussed  above.  We 
now  come  to  a  question  that  is  somewhat  different  and  which 
may  be  stated  thus:  Is  the  right,  under  the  common  law  rules, 
to  the  enjoyment  of  an  underground  spring,  from  underground 
sources,  governed  by  the  same  rule  of  law  as  that  which  applies 
to  and  regulates  a  water-course  flowing  on  the  surface?  Or,  in 
other  words,  whether  in  the  case  of  one  party  owning  a  plot  of 
land  from  which  a  spring  issues,  the  owner  of  another  plot 
of  land  higher  up  is  liable  at  law  or  in  equity  for  digging  down 
in  his  own  land  and  thereby  cutting  ofl"  or  diminishing  the 
waters  of  the  spring  below,  to  the  injury  of  the  owner  of  the 
same.  The  authorities,  both  as  laid  down  by  the  English  and 
early  American  decisions,  differ  on  this  proposition.  Black- 
stone  says:  "Land  hath  also,  in  its  legal  signification,  an 
indefinite  extent  upwards  as  well  as  downwards.  Cujiis  est 
solum,  ejus  est  icsqiie  ad  coelum,  is  the  maxim  of  the  law; 
upwards,  therefore,  no  man  may  erect  any  building,  or  the 
like,  to  overhang  another's  land;  and  downwards  -whatever  is 
in  a  direct  line,  between  the  surface  of  any  land  and  the  centre 

1  See  Part  ii,  States  and  Territories. 


[§  78.  COMMON    LAW   THEORIES.  123 

of  the  earth,  belongs  to  the  owner  of  the  surface;  as  in  every 
day's  experience  in  mining  countries.  So  that  the  word  'land' 
includes  not  merely  the  face  of  the  earth  but  everything  under 
it  or  over  it."^  But  the  rule  of  Blackstone  seems  to  have  been 
modified  by  the  English  and  early  American  decisions  to  some 
extent,  and  the  rule  seems  to  be  this:  That  water  percolating 
through  the  ground  under  the  surface,  either  without  a  defi- 
nite channel,  or  in  courses  which  are  unknown  and  unascer- 
tainable,  belong  to  the  owner  of  the  land  in  which  it  is  found, 
and  hence  is  not  subject  to  the  settled  law  governing  the 
rights  of  riparian  owners  to  the  water  of  surface  streams.^ 
In  the  case  of  Dickinson  vs.  Grand  Junction  Canal  Co.,  supra, 
Pollock.  C.  B.,  in  delivering  the  opinion  said:  "  When  water 
is  on  the  surface  the  right  of  the  owner  of  the  adjoining  land 
to  the  usufruct  of  that  water  is  not  a  doubtful  matter  of  fact; 
it  is  public  and  notorious  and  such  a  right  ought,  as  a  matter 
of  course,  to  be  respected  by  every  one;  and  indeed,  if  the 
course  of  a  subterranean  stream  were  well-known,  as  is  the 
case  with  many  which  sink  underground,  to  pursue  for  a  short 
space  a  subterranean  course  and  then  emerge  again,  it  never 
could  be  contended  that  the  owner  of  the  soil  under  which  the 
stream  flowed  could  not  maintain  an  action  for  the  diversion 
of  it,  if  it  took  place  under  such  circumstances  as  would  have 
enabled  him  to  recover  if  the  stream  had  been  wholly  above 
ground.  *  *  *  If  then  the  stream  is  diverted  by  altering 
its  course,  or  cutting  down  its  banks,  or  the  water  abstracted 
from  it  for  unauthorized  purposes  the  owner  has  his  right  of 
action  against  the  wrong  doer."-^ 

l2Bla.  Com.,  i8.  daiit  having  dug  his  well  on  his 

SChasemore  vs.  Richards,  7  L.  own    land,  in  good  faith,   for  the 

H.  Co.,  349;  5  H.  &  N.  988;  Dick-  obtaining    of  water   for  his   own 

inson  vs.    Grand    Junction    Canal  domestic    uses,   is    not   liable   for 

Co.,  7  Exch.,  282.  any    damage    which    incidentally 

3  Action  vs.  Blundell,    12  M.   &  resulted  to  the  plaintiff  by  renson 

W.,   324;    Hammond  vs.   Hall,    10  of    thereby   diverting    the    water 

Sim.,    552;    Cooper   vs.   Parker,    3  which    had   been   accustomed    to 

Taut,  99;    Bolton    vs.    Bensted,    i  percolate   or  flow  in  unknown  or 

Camp.,   463;   Chase   vs.   Silverton,  subterranean    courses    into    pbdn- 

62  Maine,   175,    where  the  defen-  tiff's   spring.     Booth   vs.   Driscoll, 


124  COMMON    LAW    THEORIES.  [§  79. 

§  79.  Same— Authorities  Discussed. — In  the  case  of  Smith 
vs.  Adams, 1  in  the  Court  of  Chancery  of  New  York  it  was 
held  that  where  a  spring  is  supplied  by  a  hidden  stream 
passing  through  the  earth  the  owner  of  the  land  above  where 
the  spring  issues  has  no  right  to  divert  such  water  by  an 
excavation  or  artificial  works  upon  his  own  land,  to  the 
injury  of  the  persons  below  the  spring  who  are  supplied  by  its 
waters  in  their  natural  course  and  who  have  a  prescriptive  use. 
The  Chancellor  to  whom  it  had  been  appealed  in  his  opinion 
stated:  "  It  is  necessary  then  to  examine  whether  the  divert- 
ing of  water  found  in  the  earth  in  the  defendant's  own  land,  to 
the  extent  to  which  the  water  has  been  diverted  by  Adams  in 
this  case,  entitles  the  complainant  to  the  extraordinar)^ 
remedy  of  a  perpetual  injunction  under  the  decree  of  the 
,  Court.  Upon  principle  I  think  that  the  rights  of  the  parties 
must  be  the  same  whether  the  Spring  issues  from  the  earth 
upon  the  land  of  Adams  or,  after  passing  under  ground 
through  his  land  first  makes  its  appearance  upon  the  surface 
of  the  earth  upon  the  lot  of  Smith,  a  little  farther  down. 
The  only  difficulty  presented  in  the  later  case  is  to  establish 
the  fact  that  the  water  diverted  is  the  same  which  in  its 
natural  course  issued  upon  and  flowed  across  the  lands  below. 
*  *  *  *  Here  the  fact  is  clearly  established  that  the  stream  of 
water  of  half  an  inch  in  diameter,  which  the  defendant  has 
diverted  to  his  house  by  means  of  the  aqueduct  upon  his  own 
land,  is  a  part  of  the  larger  stream  which  naturally  issued  from 
the  earth  upon  the  spring  lot  below. 

"The  law  is  well  settled  that  the  owner  of  the  superior  heri- 
tage has  no  right  to  detain  or  divert  the  water  which  passes 
through  his  land,  to  the  injurj^  of  those  who  were  accustomed 
to  receive  it  upon  their  land  below.  There  can  be  no  reasonable 
doubt  of  the  complainant's  right  to  sustain  an  action  in  the 
appropriate  tribunal  for  the  abstraction  of  a  part  of  the  water 

20  Conn.  535;  Greenleaf  vs.  Fran-  vs.  Baugh,  25  Penn.  St.,  442;  6  Am. 

ces,  18  Pick.  117;  Brown  vs.  Illius,  Dec.  721;  Ellis  vs.  Duncan,  29  N. 

27  Conn.  84;  25  Conn.  593;  Delhi  vs.  Y.  466;  21  Barb.  230;  Radcliffe  vs. 

Youmans,   45    N.   Y.  362;    S.  C.  5  Brooklj-n,  4  N.  Y.  195;  Pixley  vs. 

Barb.  316;  Dexter  vs.  Prov.  Acque-  Clarke,  35  N.  Y.  520;  32  Barb.  268. 
duct   Co.,   I  Story,  3S7;   Whealley  i  6  Paige  N.  Y.  Chan.  435;  442. 


§  79,  80.]  COMMON    LAW    THEORIES.  125 

of  a  Spring,  if  he  has  in  fact  sustained  any  damage  either 
directly  or  by  the  prospective  diminution  of  the  value  of  the 
spring  lot." 

The  Chancellor  seemed  to  hold  that  an  action  would  lie  if 
any  injury  had  been  sustained  through  the  loss  of  the  supply 
of  water,  without  regard  to  whether  the  water  percolated 
through  the  ground  above  the  spring  or  flowed  in  a  well 
defined  subterranean  channel. ^  But  if  the  underground 
currents  of  w  ater  are  in  well  defined  and  known  channels  the 
rules  of  law  applicable  to  the  rights  of  the  riparian  owners  of 
lands  bordering  upon  streams  flowing  upon  the  surface  are 
also  applicable. 2  But  if  the  water  passes  through  his  land  by 
naturally  percolating  through  the  soil  he  may  draw  of  the 
water  for  his  own  use,  whether  it  decreases  the  flow  of  a 
spring  below  or  not  to  the  injury  of  the  owner  thereof;  and  it 
is  also  held  that  no  adverse  right  against  him  can  be  acquired 
by  prescription,  by  the  owner  of  the  spring  below  against  the 
owners  above. '"^ 

§  80.  Priority  of  Appropriation   at  (oiuniou  Law.— At 

common  law^  the  right  of  every  proprietor  upon  a  stream  to 
the  use  of  the  running  water  thereof  exists  only  as  an  incident 
to  the  private  ownership  of  the  soil  over  which  it  runs,  or  at 
least  the  ownership  of  the  bank  bordering  upon  the  stream, 

i  Also  see  Dickinson  vs.  Grand  Burroughs   vs.   Saterlee,  67  Iowa, 

Junction  Canal  Co.,  7  Kxch.  282;  396;  56  Am.  Rep.  35. 

Cole  S.  M.  Co.  vs.  Virginia  &  G.  -^Chaseniore  vs.  Richards,  7  II. 

II.  W.  Co.,  I  Sawy.  470;  Emporia  L.  Cas.  349;  5  H.  &  N.  9S2;  Smith 

vs.  Suden,  25  Kans.  423.  vs.  Kendrick,  7  C.  B.  546;  Dickin- 

SDickinson  vs.   Grand  Junction  son  vs.  Grand  Junction  Canal  Co., 

Canal  Co.,  7  Exch.  282;  Chasemore  7  Exch.  2S2;  Ravv.'itrom  vs.  Taylor, 

vs.  Richards,  2  H.  &  N.  186;  7  H.  11  Exch.  369;  Sweet  vs.  Cutts,  50 

L.  Cas.  374;  Cole  Silver  Mining  Co.  N.  H.  439;  Wheatley  vs.  Baugh,  25 

vs.  Virginia   Mining   Co..   i  Saw.  Penn.  St.  528;  64  Am.  Dec.  721  and 

470;  Collins  vs.  Chartiers  V.  G.  Co.  note;  Frazier  vs.  Brown,   12  Ohio, 

131  Penn.  St.  143;  17  Am.  Rep.  791  St.  294,  Carbrey  vs.  Willis,  7  .Allen 

and  note;    Mahan   vs.    Brown,    13  367;  Bealey  vs.  Shaw,  6  I^nst,  208; 

West,  261;  Ewart  vs.  Belfast  Poor  Bolton  vs.  Bensted.   i   Camp.  463; 

Law   Guardians,   9   L.   R.   Ir.    172;  Whetstone   vs.    Bowser,   29   IVnn. 

St.  59;  See  ante  section  49. 


126  COMMON    LAW    THEORIES.  [§  80 

and  arises  ex  jure  naturae}  and  is  equal  in  all  of  the  proprietors 
whose  lands  adjoin  the  same  stream.^  And,  as  we  have  seen, 
this  right  to  the  reasonable  use  of  the  water  of  a  stream,  as  it 
passes  through  or  by  a  proprietor's  lands,  depends  upon  all  of 
the  circumstances  of  each  particular  case;  and  also,  after  a 
riparian  owner  has  made  a  so  called  "reasonable  use"  of  it, 
he  must  return  it  without  substantial  diminution  in  quantity, 
or  alteration  in  quality,  to  its  natural  bed  or  channel  before 
it  leaves  his  own  land,  so  that  it  will  reach  the  proprietor 
below  him  in  its  full,  original,  and  natural  condition. ^  If  he 
is  the  owner  of  the  land  adjoining  the  stream  his  rights  exist 
in  and  to  the  waters  thereof,  whether  he  chooses  to  exercise 
them  or  not,  and  he  may  begin  to  exercise  them  when  he  will.* 
So,  under  the  common  law,  a  prior  appropriation  of  water  is 
not  recognized  as  giving  any  superior  rights  as  against  other 
proprietors,  either  higher  up  or  lower  down  on  the  stream,  or 
as  against  any  of  the  other  proprietors  abutting  on  either 
side  of  him  on  the  shores  of  a  lake,  unless  he  has  acquired 
a  grant  from  all  the  other  proprietors  affected  by  such 
appropriation  for  such  superior  rights,  or  by  prescription 
which  pre -supposes  a  former  grant  to  him.^    "The  doctrine  of 

1  Ante  Sec.  56;  Angell  Secs.5,  lo;  such  circumstances  as  would  be 
Gould  on  Waters,  Sees.  204-209,  required  to  establish  right  by  pre- 
and  cases  cited;  Pom.  on  Riparian  scription.  Heath  vs.  Williams,  25 
R.,  Sec.  4.  Me.  209;  43  Am.  Dec.  265,  and  note 

2  Ibid.  and  cases.  Wood  vs.  Edes,  2  Allen, 

3  Ibid.  578;  Bliss  vs.  Kennedy,  43  111.  67; 
4jl,id.  Evans  vs.  Merriweather,  3  Scam. 

5  Gould  on  Waters,  226.  227;  An-  492;    Keeney  Mfg.   Co.  vs.  Union 

gell  on  Water-Courses,  Sees.  130-  Mfg.  Co.,  39  Conn.  576;  Hartzallvs. 

135;  Pomeroy  on  Riparian  Rights,  Sill,     12    Pa.    St.    248;    Pugh    vs. 

Sec.  4;  Gilman  vs.  Tilton,  5  N.  H.  Wheeler,  2  Dev.  &  B.  55;  Tyler  vs. 

231;  Cowles  vs.  Kidder,  24  N.  H.  Wilkinson,  4  Mason, 397;  Gould  vs. 

364;   Parkervs.  Hotchkiss,25Conn.  Barton  Duck    Co.,    13   Gray,  450; 

321,   where   the    Court  held   that:  Merritt  vs.  Brinkerhoff,  17  Johns, 

as    between    riparian    proprietors  306;  Mason  vs.  Hill,  5  B.  &  Ad.  i, 

priority   of    appropriation    of   the  3  B.  &  Ad.  304;  Wright  vs.  Howard 

waters  of  a  running  stream  which  i  Sim.   &   Sta.    190;  Sampson   vs. 

is  common  to  all  for  the  driving  Hoddinott,  i  C.  B.  N.  S.  611;  Chase- 

of  machinery ,gives  one  no  superior  more  vs.  Richards,  2  H.  &  N.  181; 

right,  unless  it  has  been  continued  Bealy  vs.  Shaw,  6  East.  208. 
for  such  a  period  of  time  and  under 


§  80,  81]. 


COMMON    LAW   THEORIES. 


127 


appropriation"  so  called,   is  not  a  doctrine  of  the    common 
law.^ 

§  81.  Same— Authorities  Discussed.— In  the  language  of 
Mr.  Justice  Story,  in  the  case  of  Tyler  vs.  Wilkinson, ^  the 
right  of  all  the  proprietors  to  have  a  stream  flow  in  its  accus- 
tomed course  is  laid  down  as  a  right  which  can  only  be  in- 
terfered with  by  a  grant  or  by  an  adverse  enjoyment  of  the 
water  for  a  period  of  time  limited  by  the  statute  of  limitation. 
"But,  of  a  thing  common  by  nature,"  he  says  in  that  very  im- 
portant opinion,  "there  maybe  an  appropriation  by  general 
consent  or  grant.  Mere  priority  of  appropriation  of  running 
water,  without  consent  or  grant,  confers  no  exclusive  right. 
It  is  not  like  the  case  of  mere  occupancy,  where  the  first  occu- 
pant takes  by  force  of  his  priority  of  occupancy.  That  sup- 
poses no  ownership  already  existing,  and  no  right  to  the  use 


1 2  Bla.  Com.  14;  Cox  vs.  Mathews, 
I  Vent.  237;  Liggins  vs.  Inge,  7 
Bing.  682;  20  Eng.  C-  L.  287;  Sack- 
rider  vs.  Beers,  10  Johns.  241;  God- 
dard's  Law  of  Easements,  250; 
Mason  vs.  Hill,  5  Barn.  &  Adol.  i; 
Rutland  vs.  Bowler,  Palmer,  200; 
Howard  vs.  Wright,  i  Shaw,  64; 
Van  Bergen  vs.  Van  Bergen,  3 
Johns.  Ch.  282  8.  C  8  Am.  Dec.  511. 

Goddard  in  his  law  of  ease- 
ments, p.  251  declares:  "That  all 
riparian  owners  of  natural  streams 
have  a  riparian  right  to  the  use  of 
water  as  it  flows  past  their  land, 
as  long  as  they  do  not  interfere 
with  the  natural  rights  of  other 
riparian  owners,  and  to  sue  for 
disturbance  is  now  an  established 
doctrine  of  law."  *  *  *  He  adds, 
"the  doctrine  (of  appropriation 
was  not  established  until  compara- 
tively modern  times,"  etc.  He 
states,  after  referring  to  some  of 
the  early  decisions,  that  the  theory 
of  appropriation  was  much  modi- 
fied by  various  decisions,  "as  the 


nature  of  riparian  rights  was 
brought  more  fully  under  consid- 
eration." He  concludes:  "Appro- 
priation of  the  water  of  flowing 
streams  has  thus  gradually  fallen 
from  being  considered  the  means 
of  acquiring  important  rights  to 
being  deemed  of  no  itnporiatice 
whatever.^' 

See  32  Edward  iii;  Angell  on 
Water-Courses  93;  Year  Book  14 
Henry  VIII,  31. 

In  Chasemore  vs.  Richards,  7  H. 
L.  Cases  384,  Lord  Winsleydale 
declares:  "We  may  consider,  there- 
fore, that  this  proposition  is  indis- 
putable, that  the  right  of  the  pro- 
prietor to  the  enjoyment  of  a 
water-course  is  a  natural  right, 
and  is  not  acquired  by  occupa- 
tion." Shury  vs  Pigot,  Bul-t.  399; 
Countess  of  Rutland,  vs.  Bowler, 
Palmer,  390;  Washburn  on  Ease- 
ments and  Servitudes,  319;  and 
cases  cited;  Gould  on  Waters,  Sees. 
226,  227,  330. 

24  Mason  397,  401. 


128 


COMMON    LAW   THEORIES 


[§81 


already  acquired.  But  our  law  annexes  to  the  riparian  pro- 
prietors the  right  to  use  in  common,  as  an  incident  to  the 
land;  and  whoever  seeks  to  found  an  exclusive  use  must  es- 
tablish a  rightful  appropriation  in  some  manner  known  and 
admitted  by  the  law.  Now,  this  may  be  a. grant  from  all  the 
proprietors  whose  interest  is  effected  by  the  particular  appro- 
priation, or  by  a  long  exclusive  enjoj^ment  without  interrup- 
tion, which  affords  a  just  presumption  of  right.  "^ 

Also  in  a  North  Carolina  case,^  Chief  Justice  Ruffin  says: 
"The  truth  is  that  every  owner  of  land  on  a  stream  neces- 
sarily and  at  all  times  is  using  water  running  through  it,  if 
in  no  other  manner  in  the  fertility  it  imparts  to  his  land,  and 
the  increase  in  the  value  of  it.     Therefore  there  is  no  prior  or 


1  See  also  the  opinion  of  tlie  same 
learned  judge  in  Whipple  vs.  Cum- 
berland Mfg.  Co.,  2  Story,  (Cir.  Ct.) 
66i.  There  is,  however,  a  class  of 
English  cases  which  seem  to  hold 
to  the  contrary  of  the  above  rule, 
evidently  upon  the  theory  of  the 
civil  law  as  laid  down  by  the  earli- 
est authorities  upon  the  subject. 
These  cases  are  notably,  Bealey  vs. 
Shaw,  6  East,  208,  Saunders  vs. 
Newman,  3  B.  &  Ad.  258;  Williams 
vs.  Morlaud,  2  D.  &  Cress.  915;  Cox 
vs.  Mathews,  i  Vent.  137, 

But,  so  far  as  we  can  see,  this 
principle  was  never  approved  in 
America  to  any  great  extent.  How- 
ever, see  Hatch  vs.  D wight,  17 
Mass  289;  and  opinion  of  Duncan, 
J.,  in  case  of  Strickland  vs.  Todd, 
10  S.  &  Rawle's,  69,  who  in  con- 
struing the  following  passage  of 
Blackstone:  "  If  a  stream  of  water 
is  unoccupied,  a  person  may  erect 
a  mill  thereon  and  detain  the  water 
yet  not  so  as  to  injure  his  neigh- 
bor's prior  mill,  for  he  has  by  the 
first  occupancy  acquired  a  property 
in  the  current,"  (2  Blackstone  Com. 
403),  said:    "My  own   opinion   is. 


that  this  doctrine  ought  not  to  be 
applied  here." 

Had  this  rule  been  adopted,  it 
would  have  thrown  to  the  ground 
the  fundamental  principles  of  the 
common  law  relating  to  running 
water,  and  all  the  leading  cases 
respecting  the  usufructuar}'^  rights 
of  riparian  proprietors.  As  Chief 
Justice  Thompson  of  the  Supreme 
Court  of  New  York  said  in  the 
case  of  Piatt  vs.  Johnson,  (15 
Johns.  N.  Y.  213;)  "to  give 
such  an  extension  to  the  doctrine 
of  occupancy  would  be  danger- 
ous and  pernicious  in  its  conse- 
quences." "The  elements,"  he 
adds,  "  being  for  general  and  pub- 
lic use,  where  the  benefit  is  ap- 
propriated to  individuals  by  oc- 
cupancy this  occupancy  must  be 
regulated  and  guarded  with  a  view 
to  the  individual  rights  of  all  who 
have  an  interest  in  its  enjoyment, 
and  the  maxim  sic  utere  tuo  ut 
alie7iiitnnon  /aedos must  be  taken 
and  construed  with  an  eye  to  the 
natural  rights  of  all." 

spugh  vs.  Wheeler,  2  Dev.  & 
B.  55; 


§  81]  COMMON    LAW    THEORIES.  129 

posterior  in  the  use,  for  the  land  of  each  enjoyed  it  alike  from 
the  origin  of  the  stream,  and  the  priority  of  a  particular  new 
application  or  artificial  use  of  the  water  does  not,  therefore, 
create  the  right  to  that  use;  but  the  existence  or  non-existence 
of  the  application  at  a  particular  time  measures  the  damages 
of  a  wrongful  act  of  another  in  derogation  of  the  general 
right  to  the  use  of  the  water  as  it  passes  to,  through,  or  from 
the  land  of  the  party  complaining.  The  right  is  not  founded 
in  user  but  is  inherent  in  the  ownership  of  the  soil,  and  when 
a  title  by  use  is  set  up  against  another  proprietor  there  must 
be  an  enjoyment  for  such  length  of  time  as  will  be  evidence 
of  a  grant,  and  thus  constitute  a  title  under  the  proprietor  of 
the  land."  And  further  on  he  makes  this  statement:  "The 
use  to  w^hich  one  is  entitled  is  not  that  which  he  happens  to 
get  before  another  but  it  is  that  which  by  reason  of  his  owner- 
ship of  land  on  the  stream  he  can  enjoy  on  his  land  and  as  an 
appurtenant  to  it." 

In  accordance  with  these  principles  it  is  settled  that  an 
upper  riparian  proprietor  cannot,  by  mere  prior  appropriation, 
acquire  the  right  as  against  a  lower  proprietor  to  divert  the 
entire  stream  or  an  unreasonable  proportion  thereof  for  irri- 
gation or  mechanical  uses,  without  restoring  the  water  to  the 
natural  bed  of  the  stream  before  it  leaves  his  land,  except 
where  the  common  law  has  been  modified  by  local  usage  or  by 
statutory  enactment.^ 

In  a  recent  case  decided  by  the  New  York  Court  of  Ap- 
peals,^  the  common  law  doctrine  was  examined  by  the  Court 
with  much  learning  and  ability,  early  authorities  were  copi- 
ously cited,  and  the  conclusions  reached  were  in  complete 
accordance  with  the  common  law  rules  as  they  are  universally 
construed  by  the  Courts  of  England  and  of  the  United  States. 
And  there  the  Court  held  that  the  State  could  not,  except 
under  its  power  of  eminent  domain  and  upon  "just  compen- 
sation," divert  the  waters  of  a  natural  stream  or  lake,  or  con- 
vert them  to  other  purposes  than  for  navigation.  Also,  in  the 
former  case  of  Lux  vs.  Haggin,  decided  by  the  California  Su- 

1  .See  also  Heath  vs.  Williams,  25  2 Smith  vs.   City   of   Rochester, 

Me.    209;    43    Am.    Rep.    265  and       92  N.  Y.,  463. 
note. 


130  COMMON    LAW   THEORIES.  [§  81,  82 

preme  Court,  it  is  said  by  Mr.  Justice  McKinstry,  who  deliv- 
ered the  opinion  :  "In  examining  the  numerous  cases  which 
establish  that  the  doctrine  of  '  appropriation  '  is  not  the  doc- 
trine of  the  common  law,  we  meet  with  an  embarrassment  of 
abundance."  ^ 

§  82.  Accretion  and  Reliction. — The  question  is  well  set- 
tled at  common  law  that  the  person  whose  land  is  bounded  by 
a  stream  of  water  which  changes  its  course  gradually,  by 
alluvial  formations,  or  the  water  of  which  gradually  receded, 
shall  still  hold  the  same  boundary  upon  the  stream,  including 
accumulated  soil  ;  this  is  so,  without  regard  to  the  question 
whether  such  accumulations  or  relictions  were  formed  wholly 
l)y  natural  causes  or  by  such  causes  influenced  by  the  artifi- 
cial works  of  others,  and  also  without  regard  to  the  questions 
whether  such  stream  is  navigable  or  unnavigable,  private  or 
public.^ 

The  right  to  accretions  as  such  in  the  bed  of  a  river  or 
water-course  depends  on  actual  contiguity,  and  any  separa- 
tion, however  slight,  of  the  claimant's  land  from  the  alluvion 
by  the  land  of  another  defeats  the  claim. 

As  is  laid  down  in  the  case  of  Bates  vs.  111.  Central  Ry.  Co.,^ 
"before  a  proprietor  can  set  up  his  claim  to  accretions  and  the 
like  he  must  first  show  that  he  owns  the  shores;  and  if  he  fail  to 
establish  his  ownership  judicial  inquiry  respecting  his  rights 
in  or  under  the  waters  adjoining  are  abstractions  and  useless."^ 

I69  Cal.  265,  390;  10  Pac.  Rep.  ger,  35  Fed.  Rep.,  188;  Perry  vs. 
753.  Pratt,    31    Conn.,   442;   Gerris   vs. 

2  Angell  on  Water-courses,  Sees.  Clow,  48  N.  H.,  9;  Ingraham  vs. 
53-57;  Gould  on  Waters,  Sees.  155-  Wilkinson,  4  Pick.,  268;  Witmore 
159;  2  Bla.  Com.  262;  Rex  vs.  Yard-  vs.  All.  White  Lead  Co.,  37  Barb., 
borough,  3  B.  &C.,  91;  5  Bing,  163;  70;  Hopkins  Academy  vs.  Dickin- 
2  Bligh.,  N.  S.,  147;  New  Orleans  son,  9  Cush.,  551;  Halsey  vs.  Mc- 
vs.  U.  S.,  10  Peters,  662;  Jones  vs.  Cormick,  18  N.  Y.,  147. 
Soulard,  24  How.  41;    Saulett  vs.  3i  Black  U.  S.,  204; 

Shepherd,  4  Wall.,  502;  Schools  vs.  4  See   also  ReState  Reservation 

Bixby,  10  Wall.,  no;  Jones  vs.  Com's,  37  Hun.,  537;  Saulet  vs. 
Johnson,  18  How.,  150;  Handly  vs.  Shepherd,  4  Wall.,  502;  Bristoll 
Anthony,  5  Wheat.,  380;  Barney  vs.  vs.  Carroll  Co.,  95  111.,  84;  Peau- 
Keokuk,  94  U.  S.,  324;  Jefferis  vs.  fort  vs.  Duncan,  i  Jones,  (N.  Y.) 
East  Omaha  Land  Co.,  134  U.  S.,  234;  Posey  vs.  Jones,  7  Lea,  (Tenn) 
178;  County  Saint  Clair  vs.  Lov-  98. 
ington,  23  Wall.,  46;  Rutz  vs.  See- 


§  82].  COMMON    LAW   THEORIES.  131 

An  accretion  or  reliction,  to  vest  a  title  in  the  owner  of  land 
abutting  upon  the  stream,  must  be  so  slow  that  its  increase 
should  be  imperceptible  ;  ^  but  if  sudden  and  considerable  it 
belongs  to  the  sovereign  or  public.^  And  converselj^  every 
proprietor  whose  land  is  thus  bounded  by  a  stream  is  subject 
to  loss  by  the  same  means  which  may  add  to  his  territory  ; 
and  as  he  is  without  remedy  for  his  loss  in  this  way  he  can- 
not be  held  accountable  for  his  gain.'^ 

These  principles  have  been  sustained  throughout  the  West- 
ern States,  where  the  common  law  principles  have  been  for 
the  most  part  modified.*  No  other  rules  than  these  can  be  ap- 
plied on  just  principles,  and  their  effect  is  that  where  a  per- 
son's lands  actually  border  upon  the  stream  and  his  riparian 
rights  have  once  accrued  by  virtue  of  the  ownership  in  the 
lands  so  situated  none  of  those  rights  can  be  lost  by  the 
gradual  formation  of  new  soil  upon  the  margin  of  the  water, 
caused  by  the  action  of  the  tides  or  current.  Were  this  other- 
wise the  whole  system  of  riparian  rights  would  be  over- 
thrown and  the  riparian  owners  whose  estates  derive  a 
greater  part  of  their  value  from  the  very  fact  that  they  bor- 
der upon  a  water  course  would  suffer  hardship  and  injustice 

llbid.  Angell  on  Water-courses,  vs.  Coan,  4  Md,  439;   53  Am.  Rep. 

Sees.  53;   Halsey  vs.  .McCormick,  219,  and  note. 

18  N.Y.,  147;  Emans  vs.  Turnbull,  ^2  Bla.  Com.  261,  262;  Emansvs 

2  Johns.,    314;  Mulry  vs.  Norton,  Tnrnbull,  2  Johns,  N.  Y.,314;  An- 

100  N.  Y.,  424;  Cook  vs.  McClure,  gell  on  Water-courses,  Sec.  57,59; 

58  N.  Y.,  437;   L,ovington  vs.   St.  Woodberry  vs.  Short,  17  Vt.  387. 

Clair,  64  111,  56;   23  Wall.,  68;  3 Mayor  of  New  Orleans  vs.  U. 

The  legal  meaning  of  the  word  S.,    10  Peters,  661;    Inre   Hull  & 

"imperceptible"   seems   to   have  Selby  Ry.   Co.,   5  M.  &  W.,  327; 

been  settled  in  the  case  of  King  Foster  vs.  Wright,  4  C.  P.  D.,  438; 

vs.    I/Ord   Yardborough,    3   B.    &  Wilson  vs.  Shivley,  11  Oregon  215; 

Cress,  91;  S.  C.  10  Eng.  Com.  Law,  County  of  St.  Clair  vs.  Livingston, 

19;  affirmed  in  the  House  of  Lords,  23  Wall.,  46;  Chapman  vs.IIaskins, 

2  Bigh.,  N.  S.,   147;  I  Dow.  N.  S.,  2  Md.  Ch.  485;  Giraudvs.  Hughes, 

176.      That  there  is  no  distinction  i  Gill  &  J.,  249;  Berry  vs.  Snyder, 

in  this  respect  between  soil  gained  3   Bush.,    266;     femith    vs.  Public 

by  accretions  and  that  uncovered  Schools,  30  Mo.,  290;  Stevens  vs. 

by  relictions,  see  Handly  vs.  An-  Patterson  Ry.  Co.,  34  N.J.  L.,  532; 

thony,  5  Wheat,  380;  Boorman  vs.  Betchel  vs.Edgewater,  45Hun.24o. 

Sunnuchs,  42  Wis,  233;  Linthicum  4  Wilson  vs.  vShivley,  ir  Oregon, 

215. 


132  COMMON    LAW    THEORIES.  [§  82,  83 

by  being  deprived  of  all  the  rights  belonging  to  them  by  vir- 
tue of  their  situation  through  the  action  of  the  tides  or  cur- 
rent working  up  a  line  of  alluvion  in  front  of  their  premises.^ 

§83.  Same — Fishery.  —  Among  the  rights  of  riparian 
owners  may  be  mentioned  the  right  of  fishing,  and  the  general 
rule  is  that  in  all  navigable  or  non-navigable  rivers  where  the 
soil  is  held  to  be  private  property  the  riparian  owners  have  the 
exclusive  right  of  fishing  in  the  water  opposite  their  lands.^ 
And  as  the  right  of  fishery  is  an  incident  to  the  ownership  in 
the  lands  bordering  upon  the  w^ater-course,  under  the  com- 
mon law,  and  as  such  is  a  vested  right,  the  owmer  of  the  same 
may  maintain  an  action  against  any  person  who  places 
obstructions  in  the  stream  which  prevent  the  free  passage  of 
the  fish  up  and  dow^n  the  river.  And  the  maintainance  of 
such  structures  in  some  States  is  held  to  be  an  indictable 
offence.^  But  the  right  to  build  dams  for  the  use  of  irrigation 
and  mechanical  purposes,  under  certain  implied  limitations,  is 
acknowledged.  One  of  these  limitations  is  to  protect  the  enjoy- 
ment of  a  fishery;  and  a  dam  must  be  so  constructed  that  the 
fish  shall  not  be  interrupted  in  their  passage.  Every  owner  of 
a  dam,  therefore,  holds  it  subject  to  the  implied  limitation 
that  a  sufficient  and  reasonable  passage-way  shall  be  reserved 
for  the  fish  to  pass  up  and  down  the  stream.  And  as  this  limi- 
tation is  a  public  benefit  it  is  not  extinguished  by  any  inatten- 
tion or  neglect  in  compelling  the  owner  to  comply  with  it.^ 

1  Deerfield  vs.  Arms,  17  Pick,  41 ;       Smith  vs.  Miller.  5  Mason,  191. 
Cambre   vs.    Cohn,  8  N.  vS.,  (La.)         3  Hamilton  vs.  Donegal!,  3  Ridge- 
S76-  Gould  on  Waters,  Sec.  155-  ^^^  ^^7;  Woolrych  on  Waters,  189; 

2  Hale  De  Jure  Maris,  Ch.  i,  5;  ^^ate  vs.  Franklin  Falls  Co.,  49  N. 
Angell  on  Water-Courses,  Sees.  H.  240;  State  vs.  Roberts,  59  N.  H. 
61-70;  Margrave's  Law  Tracts,  256;  256;  Chase  vs.  Baker,  59  N.  H.  3471 
Gould  on  Waters,  Sec.  182;  3  Kent  ^  Well  vs.  Hornby,  7  East.,  195; 
Com.  409,  417;  Royal  Fishery  of  3  Smith,  244,  i  BaU.  Abs.  142;  Prov. 
the  Baune,  Davies,  149;  Gould  vs.  Stat.  15  George  III  Ch.  6,  which 
James,  6  Cowan  369;  Hart  vs.  Hill,  provides  that  all  persons  who  erect 
I  Whart.  124;  People  vs.  Piatt,  17  or  build  a  dam  across  any  river  or 
Johns.  N.  Y.  195;  Hooker  vs.  Cum-  stream  where  the  salmon,  shad, 
mings,  20  Johns.  90;  Freary  vs.  alewives  or  other  fish  usually  pass 
Cooke'  14  Mass.  488;  Common-  up  into  the  natural  ponds,  to  cast 
wealth  vs.  Chapin,  5  Pick.  199;  their  spawn,  were  required  to 
People    vs.    Piatt,    17  Johns.    195;       make  a  sufficient  passage-way  for 


§  84].  COMMON    LAW   THEORIES.  133 

§  84.  Same — Authorities  Discussed. — In  the  United  States 
the  weight  of  authority  holds  that  the  right  of  fisher}-,  as 
well  as  the  use  of  the  water  of  a  stream  for  mill  purposes,  is 
the  subject  of  private  ownership,  and  both  are  vested  rights 
entitled  to  public  protection  and  subject  to  legislative  regula- 
tion and  control.  As  Mr.  Justice  Clifford,  in  delivering  the 
opinion  of  the  Supreme  Court  of  the  United  States  in  the  case 
of  The  Holyoke  Water  Power  Co.  vs.  Lyman  et  al.,^  said: 
"  Evidently  the  right  of  fishery,  as  well  as  the  right  to  use 
the  water  of  a  stream  for  mill  purposes,  is  the  subject  of 
private  ownership,  and  when  held  by  a  good  title  the  one  as 
much  as  the  other  is  a  vested  right,  and  both  alike  are  entitled 
to  public  protection,  and  are  subject,  in  a  certain  sense,  to 
legislative  regulation  and  control.  Difficulties,  in  every  case, 
attend  the  proper  adjustment  of  such  rights,  as  the  complete 
enjoyment  of  the  one  may  interfere  with  the  corresponding 
enjoyment  of  the  other,  but  the  presumption  is,  in  construing 
any  regulation  upon  the  subject,  that  the  framers  of  the  regu- 
lation did  not  intend  to  allow  either  party  to  disregard  the  rule 
that  he  should  so  use  his  own  property  as  not  to  inj  ure  the 
property  of  the  owner  of  the  other  right.  Ownership  of 
the  banks  and  bed  of  the  stream,  as  before  remarked,  gives 
to  the  proprietor  the  exclusive  right  of  fishery  opposite  his 
land  as  well  as  the  right  to  use  the  water  to  create  power  to 
operate  mills,  but  neither  the  one  nor  the  other  right,  nor 
both  combined,  confer  any  right  to  erect  obstructions  in  the 
river  to  prevent  the  free  passage  of  the  fish  up  and  down  the 
river  at  their  accustomed  seasons,  as  such  obstructions  would 
impair  and  ultimately  destroy  all  such  rights  owned  by  the 
other  proprietors  both  above  and  below  the  obstruction  on  the 
same  stream. "^     And  we  will  only  add  in    this    connection 

the  fish  to  pass  up  such  river  or  Stoughton  vs.  Baker,  15  Mass.  522. 
stream,  and  the  owuers  of  a  dam  1 15  Wall.  500. 
so  constructed  that  such  fish  could  2  See  also  Commonwealth  vs. 
not  pass  up  the  river  or  stream  Chapin,  5  Pick.  199;  Common- 
were  required  to  make  such  a  wealth  vs.  Essex  Co.,  13  Gray,  247; 
passage-way  and  keep  it  open  for  State  vs.  Stover,  42  N.  J.  L.  341; 
a  certain  period  in  each  year,  as  Doughty  vs.  Conover,  42  N.  J.  I,. 
therein  prescribed.  See  also  Prov.  193. 
Stat.   8  Ann   Ch.  3,   162;  Town  of 


134  COMMON    LAW    THEORIES.  [§  84,  85,  86 

that  in  this  country  the  statute  books  of  almost  all  of  the 
States  show  the  solicitude  of  their  respective  legislatures  to 
preserve  a  free  passage  in  the  streams  and  rivers  which  flow 
in  the  various  States,  and  especially  in  those  rivers  which  are 
visited  by  fish  from  the  ocean. 

In  nearly  every  State  and  Territory  of  the  arid  region  are 
statutory  provisions  which  provide  that  the  builders  of  dams 
in  any  of  the  rivers  and  streams,  for  the  purpose  of  diverting 
water  for  irrigation  or  otherwise,  shall  construct  suitable  fish 
wa3'S;  and  also  provide  that  at  the  head  of  the  ditch  where 
the  water  is  diverted  for  the  purpose  of  irrigation  the  owner 
of  such  ditch  or  works  shall  cause  to  be  constructed  wire 
screens  to  prevent  the  fish  in  the  stream  from  going  down  the 
ditch  and  thus  being  destroyed. 

§85.  Otlier  Miscellaneous  Riparian  Rights.— There   are 

other  rights  which  the  proprietors  of  land  bordering  on  water- 
courses have  by  virtue  of  their  ownership  under  the  common 
law  theories,  but  they  are  either  not  in  conflict  with  the 
modern  theory  of  the  application  of  water  for  the  purpose  of 
irrigating  lands,  and  so  will  be  fully  discussed  under  their 
proper  heads  when  we  come  to  that  subject,  or  they  are  in  no 
way  connected  with  that  subject.^ 

§  86.  Lakes  and  Ponds,  Property  in. — The  early  English 
authorities  are  indefinite  respecting  property  in  land  covered 
by  lakes  and  ponds.  As  to  riparian  rights,  it  was  first  re- 
garded as  not  necessary  to  determine  whether  the  soil  of  lakes 
and  ponds,  like  that  of  fresh  water  rivers,  prima  facie  belongs 
to  the  owners  of  the  land  or  of  the  manors  on  either  side,  ad 
medium  Jihim  aquae,  or  whether  it  belongs  ^rz>;m  facie  to  the 
King,  by  right  of  his  prerogative.-   But  later  it  was  laid  down 

1  Flowing  Land,  Gould  on  Pattinson,  2  Q.  B.  D,  263;  Perry 
Waters,  Sec.  210.  vs.  Thornton,  23  L.  R.  Ir.  402; 
2  Marshall  vs.  Ullswater  Steam  Hunt  on  Boundaries  and  Fences, 
Nav.  Co.,  3  Best.  &  S.  732:  Com.  19;  Grey's  Case  Owen,  20;  Pollen- 
Dig.  Prerogative  (D.  50);  Hale  De  fen  vs.  Crispin,  i  Vent.  122;  Bell's 
Jure  Maris,  Ch.  i;  Devonshire  vs.  Law  of  Scotland,  171. 


§  86,  87] 


COMMON    LAW    THEORIES. 


135 


in  the  House  of  Lords,  in  the  case  of  Bristow  vs.  Cormican, 
that  the  Crown  has  no  de  jure  right  to  the  soil  or  fisheries  of 
an  inland  non-tidal  lake,  which  rule  has  been  followed  by 
other  decisions.^  So,  the  law  in  England  is  settled  that  the 
Crown  and  the  public  have  no  such  rights  in  fresh  water  lakes 
as  the}'  possess  in  water-courses  subject  to  the  ebb  and  flow  of 
the  tide;  that  the  owners  of  the  land  bordering  upon  the  lake 
or  pond  are  the  owners  of  the  soil  and  the  fisheries  in  them, 
and  that  the  public  have  no  greater  privileges  in  them  than  in 
fi-esh  water  rivers.^ 

§  87.  Same.— Rule  in  tlie  United  States.— In  the  United 
States  our  great  navigable  laljes,  as  well  as  our  great  navi- 
gable rivers,  are  regarded  as  public  propert}',  and  are  not  sus- 
ceptible of  private  ownership  any  more  than  is  the  sea,  but 
the  riparian  owner's  title  extends  to  the  edge  of  the  water  at 


1  Bristow  vs.  Cormican,  L.  R.  3 
App.  Cas.,  641;  S.  C.  Ir.  to  C.  L., 
398;  2  L.  R.  Ir.,  118.  In  this  case 
Lord  Cairns,  who  was  then  Lord 
Chancellor,  said:  "The  Crown  has 
no  de  jiire  right  to  the  soil  or  fish- 
eries of  a  lough  like  Lough  Neagh. 
Lough  Neagh  is,  as  your  Lord- 
ships are  aware  the  longest  inland 
lake  in  the  United  Kingdom,  and 
one  of  the  largest  in  Europe.  It 
is  from  fourteen  to  sixteen  miles 
long  and  from  six  to  eight  miles 
broad.  It  contains  nearly  one 
hundred  thousand  acres;  but 
though  itis  so  large,  lam  not  aware 
of  any  rule  which  would  pri)na 
facie  connect  the  soil  or  the  fish- 
eries with  the  crown,  or  discon- 
nect them  from  the  private  own- 
ership, either  of  riparian  proprie- 
tors or  other  persons."  Lord 
Blackburn  said  :  "  It  is  clearly  and 
uniformly  laid  down  in  our  books, 
that  where  the  soil  is  covered  by 
the  water  forming  a  river  in  which 
the   tide   does   not   flow,   the  soil 


does  of  common  right  belong  to 
the  owners  of  the  adjoining  land; 
and  there  is  no  case,  or  book  of 
authority,  to  show  that  the  crown 
is  of  common  right  entitled  to 
land  covered  by  water  where 
the  water  is  not  running-water 
forming  a  river,  l)ut  still-water 
forming  a  lake."  *  *  *  <<it  is, 
however,  necessary  to  decide 
whether  the  crown  has  of  common 
right  a  prima  facie  title  to  the 
soil  of  a  lake;  I  think  it  has  not. 
I  know  of  no  authority  for  saying 
it  has,  and  I  see  no  reason  why  it 
.should  be."  See  also  Bloomfield 
vs.  Johnson  Ir.  R.  8  C.  L.  68. 

2  See  cases  cited  al)ove;  as  to  the 
right  of  the  pul)lic  to  navigate 
upon  lakes.  See  Marshall  vs. 
Uleswater  Steam  Nav.  Co.,  L.  R. 
7  Q.  B.,  166;  Bloomfield  vs.  John- 
son, Ir.  R.  8  C.  L.  68;  Bristow  vs. 
Cormican,  3  App.  Cas.,  641;  Ir.  R. 
10  C.  L.,  398;  Mackenzie  vs.  Baker, 
3  Ap.  Cas.  1324. 


136 


COMMON    LAW    THEORIES. 


[§87 


low  watermark,  and  grants  bounded  by  such  waters  extend  to 
that  line.^  But  upon  the  other  hand,  in  this  country  a  lake 
or  pond  too  small  to  be  really  useful  for  navigation,  although 
of  considerable  size  as  compared  with  other  fresh  water 
streams,  may  be  private  prv)perty,  and  as  such  is  subject  to 
the  common  law  rules  as  to  fresh  water  streams  respecting  the 
ownership  of  the  soil  under  tliem.^  This  rule,  however, 
varies,  especially  in  the  Kastern  States.^  But  in  the  Western 
States  it  is  held  that  the  owners  of  land  bordering  upon  non- 
navigable  lakes  or  ponds  situated  within  the  original  govern- 


1  Champlain  Ry  Co.  vs.  Valen- 
tine, 19  Barb.  484;  Trustees  vs. 
Dennett,  9  N.  Y.  669;  Fletcher  vs. 
Phelps,  28  Vt.  257;  Jakeway  vs. 
Barrett,  38  Vt.  316;  Austin  vs.  Rut- 
land Ry.  Co.,  45  Vt.  215;  17  Fed. 
Rep.  466;  Canal  Coni'r's  vs.  People. 
5  Wend.  423;  Wheeler  vs.  Spinola, 
54  N.  Y.  377;  People  vs.  Jones,  112 
N.  Y.  597;  Mariner  vs.  Schulte,  13 
Wis.  682;  Wood  vs.  Kelly,  30 
Maine.  47;  Waterman  vs.  Johnson, 
13  Pick  261;  Ladd  vs.  Oshorn,  79 
Iowa  93;  Hardin  vs.  Jordon,  16  Fed. 
Rep.  823;  140  U.  S.  371,  in  which 
the  court  held  that  by  the  com- 
mon law,  under  a  grant  of  lands 
bounded  by  a  lake  or  pond  which 
is  not  tide-water  and  is  not  navi- 
gable, the  grantee  takes  to  the 
center  of  the  pond  or  lake,  ratably 
with  other  riparian  proprietors,  if 
there  be  such;  and  this  rule  pre- 
vailed in  Illinois  when  the  patent  to 
the  plaintiff's  ancestor  was  granted 
in  1841  and  is  still  the  law  of  that 
State.  Packer  vs.  Bird,  137  U.  vS. 
366. 

^Ledyard  vs.  Ten  Eyck,  36  Barb, 
loi;  Gouveneur  vs.  National  Ice 
Co.,  57  Hun.  474;  Atwood  vs.  Can- 
andagua,  56  Hun.  293;  Smith  vs. 
Rochester,  92  N.  Y.  463;  Cobb  vs_ 
Davenport,  32  N.  J.  369. 


3  In  New  York  it  is  held  that  an 
inland  lake  five  miles  long  and 
three-quarters  of  a  luile  wide, 
which  has  no  important  inlet  and 
does  not  form  a  part  of  a  chain  of 
connecting  waters,  is  subject  to 
the  common  law  rule  as  to  fresh 
water  streams.  Ledyard  vs.  Ten 
Eyck,  36  Barb.  loi. 

As  for  the  rule  in  Mass.  see  Com- 
monwealth vs.  Alger,  7  Cusli.  53; 
West  Roxbury  vs.  Stoddard,  7  Al- 
len 158;  Commonwealth  vs.  Tif- 
fany, 119  Mass.  300;  Tudor  vs.  Cam- 
bridge W.  Works,  I  Allen  164; 
Commonwealth  vs.  Vincent,  108 
Mass.  441;  Fa 3^  vs.  Salem  Aque- 
duct Co.,  Ill  Mass.  27;  Gould  on 
Waters,  Sec.  84. 

In  Massachusetts,  ponds  of  more 
than  twenty  acres  in  area  are 
called  great  ponds,  and  as  such  are 
owned  by  the  State,  as  public 
property  held  in  trust  for  public 
use.  Watuppa  Reservoir  Co.  vs 
Fall  River  et  al,  147  Mass.  48;  Com- 
monwealth vs.  Tiffany,  119  Mass. 
303;  12  Am.  &  Eng.  Ency.  of  Law 

634- 

Brastow  vs.  Rockport,  77  Maine 
100,  in  which  the  Court  held  that 
in  that  State,  all  ponds  containing 
more  than  ten  acres  are  public 
ponds,   and  the  right   to   cut  ice 


§  87,  88].  COMMON    LAW    THEORIES.  137 

ment  surve3-s  own  the  bed  of  the  lake  to  its  center,  as  in  the 
case  of  non-navigable  streams.^  But  if  the  lakes  are  large 
and  navigable  the}-  are  public  property,  and  the  riparian  own- 
ers take  onl)'  to  the  water's  edge.- 

§  88.  Same. — llipariaii  Rights  Concerniiiix— The  riparian 
rights  of  proprietors  whose  lands  border  upon  lakes  and  nat- 
ural ponds,  as  well  as  the  ownership  of  the  soil  under  the 
same,  do  not  appear  to  have  been  settled  by  the  early  English 
authorities.-* 

In  the  case  of  Paine  vs.  Woods, ^  Wells,  J  ,  said:  "The 
English  books  offer  little  light  on  this  subject.  *  *  *  But 
the  question  whether  the  title  in  the  land  under  the  fresh 
water  pond  or  lake  is  in  the  proprietor  of  the  lands  adjoining 
or  in  the  Crown  does  not  seem  to  have  been  ever  judicially 
determined  in  England."  But  in  this  country,  in  general,  we 
may  say  that  the  same  rules  relative  to  riparian  rights  attach 
to  the  ownershipof  the  soil  bordering  upon  an  inland  lake  or 
pond  as  those  which  govern  the  ownership  ot  the  banks 
of  streams  or  rivers  regardless  of  the  fact  as  to  whether  they 
are  navigable  in  fact  or  not,  or  whether  the  owners  of  the 
bank  are  also  owners  of  the  soil  under  the  water  or  not.  This 
is  especially  so  concerning  the  particular  uses  and  appropria- 
tion of  water  by  riparian  owners.  The  weight  of  authority 
seems  to  hold  that  riparian  rights  proper  rest  upon  the  title  to 
the  bank  of  the  lake,  and  not  upon  the  title  to  the  soil  under 
the  water,  and  they  are  the  same  whether  the  riparian  owner 

upon  them  is  a  public  right,  free  336;  S  L.  R.  A.  578;  Delaphine  vs. 

to   all.      In   this   particular,    the  Chicago    Ry.    Co.,    42    Wis.    214; 

owners   of   the  shore   have  no  Boorman  vs.   Summuchs,  42  Wis. 

greater  right  than  other  persons  233;  Deidrich   vs.  North  Western 

who  can  reach  the  pond  without  Ry.  Co.,  42  Wis.  248;  47  Wis.  662; 

trespassing    upon    the    lands     of  Olson    vs.   Merrill,   42    Wis.    203; 

others.     Clement  vs.  Burns,  43  N.  Wright    vs.    Bay,    33    Wis.    260. 

H.  621.  iMichigan.      Clute  vs.    I'isher,    65 

iRidgewayvs.   Ludlow,   58  Ind.  Mich.  48. 

148;  Edwards  vs.  Agle,  76  Ind.  392;  SQould  on  Waters,  Sec.  82,  85. 

vStoner  vs.  Rice,  121  Ind.  51;  Vox-  3  Marshall  vs.  Ullswatcr  Xaviga- 

Byth  vs.  Smale,  7  Biss.  201.      See  tion  Co.,  3  B.  &  S.  732. 

also  Nye  vs.  Andrews,  47  Ohio  St.  -t  108  Mass.  160,   169. 


138  COMMON    LAW    THEORIES.  [§  88,  89 

owns  the  soil  under  the  water  or  not.^  So  the  owner  of  lands 
upon  a  navigable  lake  has,  as  such,  the  exclusive  right  of  ac- 
cess to  and  from  the  lake  in  front  of  his  land  and  the  right  to 
construct  there  buildings,  piers  and  wharfs  not  interfering 
with  the  public  easement  of  navigation .^  Also,  if  a  lake, 
whether  navigable  or  not,  recede  gradually  and  insensibly  the 
derelict  land  belongs  to  the  adjacent  riparian  proprietor. 
The  right  of  access  is  not  lost  by  the  gradual  and  impercept- 
ible recession  of  the  water,  but  the  land  gained  by  the  relic- 
tion belongs  to  the  owner  of  the  contiguous  land  to  which  the 
addition  is  made.^  So,  in  general,  we  can  say  that  every 
owner  of  land  abutting  upon  a  natural  inland  lake  or  pond 
has,  like  the  owner  of  land  bordering  upon  a  river  or  stream; 
a  usufruct  in  the  waters  of  the  lake  or  pond,  and  has  a  com- 
mon right  with  his  neighbors  to  the  natural  flow  of  the  water 
in  its  accustomed  place,  without  unnatural  detention  or  sub- 
stantial diminution  in  quantity  or  deterioration  in  qualit}^; 
and  none  can  make  any  use  of  it  that  shall  in  any  way  be 
prejudicial  to  the  other  owners,  unless  he  has  acquired  a  right 
to  so  use  it  by  license,  grant  or  prescription.^ 

§  89.  Public  Gfrsmt.— In  ancient  times  the  crown  could 
grant  to  a  subject  the  soil  of  the  tide  waters  and  also  could 
pass  exclusive  rights  of  fishery  in  such  waters,-^  but  in  modern 

1  Diedrich  vs.  N.  W.  Union  Ry.       214;  S.  C.  24,  Am.  Rep.  386. 

Co.,  42  Wis.  248,  where  the  Court  3 Murray  vs.    Sermon,   i  Hawks 

held  that  distinguished  from  ap-  (N.  C.)  56;  Gould  on  Waters,  2nd 

propriation  and  occupation  of  the  Edition,    page   311,    note   one;    12 

soil   under   the   water  a   riparian  Am.  &   Eng.    Enc.    of   Law,   651; 

owner     upon     navigable      water,  Warren  vs.  Chambers,  25  Ark.  120; 

whether  or  not  he  owns  the  soil  C.  S.  4  Am.  Rep.   23;    Banks   vs. 

to  the  thread  of  the  river  or  stream,  Ogden,  2  Wall.  57. 

has  a  right  (unless  prohibited  by  4 Smith  vs.  Cit\-  of  Rochester,  92 

local   law)   to   construct  in   shoal  N.  Y.  463. 

water,  in  front  of  his  land,  proper  5  Williams  vs.  Wilcox,  8  Ad.  & 

wharves    in    aid     of     navigation.  Ed.  314;  Rex  vs.  Westham,  loMod. 

Delaphine    vs.    Railway    Co.,    42  159;  Rex  vs.  Bristol  Dock  Co.,  6 B. 

Wis.,   214;  Chapman  vs.  Oshkosh  &  C,  181;  Lord  Fitzwalters  Case, 

&  M.  R.  Co.,  2,3  Wis.,  629;  Lyon  i  Mod.   105;  Carter  vs.   Murcot,  4 

vs.  Fishmonger  Co.,  L.  R.   i  Ap-  Burr.  2162;  Rex  vs.  Clark,  12  Mod, 

peal  Cas.  662.     As  to  definition  of  615;  Hale  De  Jure   Maris,    Ch.  5; 

riparian  rights  see  ante  sec.  57.  Colchester  vs.  Brooke,  7  Q.  B.  339. 

2  Delaphine  vs.  Ry.  Co.,  42  Wis. 


§  89].  COMMON    LAW    THEORIES.  139 

times  it  has  been  decided  in  England  that  it  is  incompetent 
for  the  crown  to  abridge  or  destro}-  by  its  own  act  the  public 
rights  either  of  navigation  or  fisher}-,  as  it  can  not  confer 
upon  its  grantee  a  greater  power  in  this  respect  than  that 
with  which  it  itself  is  invested.^  And  in  general,  we  may 
sa}',  that  in  this  country  the  Federal  Government  and  the 
several  States  have  followed  the  earlier  common  law  decisons 
of  England  in  this  respect:  that  the  State  maj'^  grant  to  individ- 
uals or  corporations  the  soil  of  public  navigable  waters  or  the 
exclusive  right  of  fisher}^  in  them,-  subject,  of  course,  to  the 
public  right  of  navigation. 

As  respects  private  water-courses,  as  we  have  seen  in 
the  previous  sections,  riparian  proprietors  who  own  the  soil 
bordering  upon  the  same  have  all  the  rights  that  attach  to 
such  ownership  and  which  are  under  the  common  law  called 
riparian  rights.  So,  in  that  part  of  this  country  designated 
as  public  lands  the  United  States,  as  the  proprietors  of  such 
lands,  has  the  same  rights  and  propert}-  in  the  streams  flow- 
ing through  them  that  would  be  possessed  by  any  other  ripa- 
rian proprietor.  And  in  the  absence  of  legislation  by 
Congress  limiting  the  effect  of  the  grant  patents  for  public 
lands  from  the  General  Government  pass,  together  with  the 
fee  of  the  soil  and  as  incident  thereto,  all  of  the  common  law 
rights  of  the  natural  streams  which  flow  through  them.^  But 
in  case  of  legislation  by  Congress  all  acts  limiting  the  efiect 
of  the  grant  are  in  the  nature  of  a  reservation  by  the  govern- 
ment, and  the  patents  issued  thereafter  must  be  subject  to 
them,  as  in  the  case  of  the  act  of  Congress  of  July,  26th, 
1866.  ■*     In  this    country  a  grant   by    a    State    conveying    a 

li  Bla.  Com.  286;  Doe  vs.  York,  People  vs.  Thompson,  30  Hun.  457; 

14  Q.  B.  81;  37  and  38  Vict.  Ch.40;  Middleton  vs.   Prichard,  3  Scam. 

Vyner  vs.  Mersey  Docks,  14  C.  B.  (111.)  510. 

N.  S.  758;  Gould  on  Waters,  .Sec.  3  Union    Mill   Co.    vs.    Ferris,    2 

21  and  notes,  also  Sec.  167.  Sawyer,     176;     Woodruff    vs.     N. 

SCommonvvealth    vs.    Alger,     7  Bloomfield  G.  M.  Co.,  8  Sawyer, 

Cush.    53;    Arnold   vs.    Mundy,     i  628,  9  Id.  441 :  Mathews  vs.  Ferrea, 

Hoist,  i;  Bell  vs.  Gough,  23  N.  J.  45  Cal.  51. 

Iv.  624;   Attorney   Gen.   vs.   Dela-  -lU.    vS.    Rev.    Stat.    Sec.     2339, 

ware  Ry.  Co.,  27  N.J.  I'<q.   i,  631;  which  reads  as  follows:  "  When- 

Galveston  vs.  Menard,  23  Tex.  349;  ever,    by    priority    of    possession 


140 


COMMON    LAW   THEORIES. 


[§  89,  90 


tract  of  territory,  in  the  absence  of  legislation  reserving  any 
portion  to  the  contrary,  carries  with  it  to  the  grantee  a  right  of 
property  in  all  the  water-courses  within  the  boundaries  of  the 
grant,  and  hence  all  the  riparian  rights  that  attach  to  those 
water-courses  as  an  incident  to  the  soil.^ 

§  90.  Private  Grants. — In  this  country  when  an  individual 
has  once  acquired  an  ownership  in  a  water-course,  as  an  inci- 
dent to  his  land  adjoining  the  same,  by  a  grant  from  the  State, 
an  individual,  or  from  any  other  source,  he  may  in  turn  con- 
vey his  ownership  to  another,  in  whole  or  in  part.  He  may 
convey  all  or  a  part  of  his  riparian  rights,  and  his  grantee  will 
take  all  the  title  and  rights  that  the  grantor  himself  had  and 
which  had  been  conveyed  to  him,  but  of  course  no  more. 
Such  owners  may  convey  the  riparian  rights  in  the  stream  to 


rights  to  the  use  of  water  for 
mining,  agricultural,  manufact- 
uring, or  other  purposes,  have 
vested  and  accrued,  and  the  same 
are  recognized  and  acknowledged 
by  the  local  customs,  laws,  and  de- 
cisions of  courts,  the  possessors 
and  owners  of  such  vested  rights 
shall  be  maintained  and  protected 
in  the  same;  and  the  right  of  way 
for  the  construction  of  ditches  and 
canals  for  the  purpose  aforesaid  is 
hereby  acknowledged  and  con- 
firmed." 

See  also  Basey  vs.  Gallagher,  20 
Wall  670;  Atchison  vs.  Peterson, 
20  Wall  507;  Jennison  vs.  Kirk,  98 
U.  S.  453,  462;  Mining  Co.  vs.  Tar- 
bet,  98  Id.  463;  Thorp,  vs.  Freed., 
I  Mon.  651. 

The  effect  of  this  statute  is  to 
preserve  the  priority  against  those 
who  have  received  patents  to  their 
lands,  subsequent  to  the  enact- 
ment. 

See  on  this  point  Union  Mill  Co. 
vs.  Ferris,  2  Sawyer  176;  Hobert 
vs.  Ford ,  6  Nev.  77;  Shoemaker  vs. 


Hatch,  13  Nev.  261 ;  Rivers  vs.  Bur- 
bank,  i3Nev.  398;  James  vs.  Adams, 
19  Nev.  78;  Broder  vs.  NatomaW.  &. 
M.  Co.,  50  Cal.  821;  loi  U.  S.  274; 
Landsdale  vs.  Daniels,  100  U.  S. 
iiS;  Titcomb  vs.  Kirk,  51  Col.  288; 
Cave  vs.  Crafts,  53  Cal.  135. 

ILunt  vs.  Holland,  14  Mass.  149; 
Middleton  vs.  Prichard,  3  Scam. 
(111.)  520;  Canal  Com's  vs.  People, 
5  Wend.  423;  People  vs.  Canal  Ap- 
praisers, 13  Wend.  355;  Rogers  vs. 
Jones,  I  Wend.  255;  Coovert  vs. 
O' Conors,  8  Watt.  470,  where  the 
court  held  that  a  grant  from  the 
commonwealth  of  vacant  land 
bounded  by  a  stream  which  has 
not  been  declared  navigable  by 
law,  and  following  its  courses  and 
distances,  passes  the  right  to  the 
soil  to  the  middle  of  the  stream, 
and  although  the  stream  may  sub- 
sequently to  the  grant  be  declared 
a  public  highway  that  does  not 
divest  the  property  previously  ac- 
quired by  a  grant  from  the  com- 
monwealth. 


§  90,  91].  COMMON    LAW   THEORIES.  141 

one  person  and  the  adjoining  land  to  another;  or  he  may- 
reserve  certain  of  his  rights  in  the  stream;  or  he  may  convey 
the  land,  without  making  any  reservation  in  the  deed,  to  his 
grantee,  who,  in  that  case,  would  be  the  riparian  proprietor 
in  the  grantor's  stead,  and  would  own  to  the  middle  of  the 
stream  and  be  entitled  to  all  the  riparian  rights  that  are 
attached  to  the  land.^  But  it  has  been  held  that  a  grant  of  a 
stream  by  that  name  will  not  pass  the  land  over  which  the 
water  runs.  It  must  be  described  as  so  much  land  covered 
by  water. ^  Also  an  owner,  by  a  reservation  in  the  instrument 
of  conveyance  directly  expressed  or  clearl}'-  implied  to  such 
effect,  may  grant  the  land  adjoining  the  water-course  and 
may  reserve  to  himself  all  the  property  in  the  water-course 
itself  and  all  the  rights  attached  thereto  b}^  virtue  of  his  for- 
mer ownership  in  the  land  adjoining.  In  the  absence  of  such 
words  limiting  the  grant  the  bed,  and  consequently  the 
stream,  and  all  of  his  riparian  rights  formerly  attached  thereto 
pass  by  the  conveyance.'^ 

§  91.  Same. — Continued. — A  grant  or  reservation  in  a  con- 
veyance ma}^  also  be  a  certain  quantity  of  water;  as  much,  for 
instance,  as  would  pass  through  a  sluice-wa}^  or  a  flood-gate 
of  certain  dimensions;  or  it  may  be  of  a  certain  extent  of  water- 
power,  as  is  required  to  operate  certain  specific  machinery. 
And  the  authorities  hold  that  there  is  an  obvious  and  impor- 
tant distinction  between  the  grant  of  a  certain  use  of  the  water 
and  the  water  itself.^  The  grantee  may  be  limited  by  the  terms 
of  the  deed  in  the  application  of  the  water  to  a  certain  par- 
ticular use.     The  words  in  the  indenture,  the  situation  of  the 

1  Den  vs.  Wright,  i  Peters,  (Cir.  Kenned)',  5  II.  &  Johns.  (Md.)  195; 
Ct.)  64;  Strong  vs.  Benedict,  5  Gavit's  Administrators  vs.  Cham- 
Conn.  221;  Ashley  vs.  Pease,  18  bers,  3  Ohio,  495.  In  regard  to 
Pick.  268;  Biglow  vs.  Battle,  15  reservations  in  grants,  see  Angell 
Mass.  313.  on  water-courses.  Sec.  173-190. 

2jackson   vs.   Halstead,  5   Cow.  4  gx  parte   Miller,   3   Hill,   418; 

216.  Bardwell  vs.  Ames,   22  Pick.  333; 

SClaremont  vs.  Carlton,  2  N.  II.  Boston  Water  Power  Co.  vs.  Gray, 

371;  Hay's  Executor  vs.  Bowman,  6  Met.  131;  Kennedy  vs.  Scovil,  12 

I  Rand.  (Va.)  420;  Waterman  vs.  Conn.  317. 
Johnson,   3  Pick.  261;    Brown  vs. 


142 


COMMON    LAAV    THEORIES. 


[§91 


parties,  the  uncertaint}^  as  to  the  quantity  of  the  water  gran  ted  j 
and  the  usage  by  the  grantee,  may  all  be  introduced  in  evi- 
dence as  tending  to  show  that  it  was  intended  to  limit  the 
quantity  to  the  particular  use  for  which  it  was  granted  and 
originally  intended  to  be  applied.^  In  general  we  may  say 
that  the  right  to  the  use  of  the  water-course,  ex  jure  naturae, 
or  as  an  incident  to  the  land,  under  the  common  law,  is  sub- 
ject to  be  abridged,  enlarged  or  modified  b}^  grant.  But  the 
extent  of  such  abridgement,  enlargement  or  modification  is  to 
be  measured  by  the  express  stipulation  contained  in  the  grant 
or  instrument  of  conveyance  itself.^  These  special  rights  that 
may  be  acquired  in  water-courses  sometimes  approach  those 
rights  which  are  classified  by  law-writers  as  easements,  and 
can  only  be  created  hy  deed;^  and  when  so  created  the  grantor 
can  not  derogate  from  the  terms  of  the  deed,  and  the  nature 
and  extent  of  the  rights  of  the  parties  can  only  be  determined 
by  the  terms  of  the  instrument  of  conveyance  itself.^ 


1  Strong  vs.  Benedict,  5  Conn. 
221;  Livingston  vs.  Ten  Broeck,  16 
John.  14;  Biglow  vs.  Battle,  15 
Mass.  313;  Luttrel's  Case,  4  Coke, 
86;  Robert  May's  Case,  9  Coke, 
113;  Howell  vs.  King,  i  Mod.  190; 
Lawton  vs.  Ward,  i  Lord  Ra^-- 
mond,  75;  Spragiie  vs.  Snow,  4 
Pick.  54. 

2  On  general  subject  see  Angell 
on  Water  courses,  Cliap.  V;  Gould 
on  Waters,  Chap.  X. 

3  Coke  Litt.  9  A;  Hawlins  vs. 
Shippam,  5  B.  &  C.  221;  11  Eng. 
Com.  L.  207;  Crocker  vs.  Cowper, 

I  C.  M.  &  R.  418;  Cook  vs.  Sterns, 

II  Mass.  533;  Williams  vs.  Wads- 
worth,  51  Conn.  277;  Nellis  vs. 
Munsou,  108  N.  Y.  453;  24  Hun. 
575;  Wright  vs.  Newton,  130 Mass. 
552;  Dority  vs.  Dunning,  78  Me. 
381;  Wilder  vs.  Wheeler,  60  N.  H. 
351;  Jones  vs.  Pettibone,  2  Wis. 
308;  Peasley  vs.  Tower,  62  N.  H. 
432;  Warren  vs.  Carey,  45  Mass.  78. 


4Northam  vs.  Hurley,  i  E.  &  B. 
665;  72  Eng.  Com.  L.  663;  White- 
head vs.  Parks,  2  H.  &  N.  878; 
Sharp  vs.  Waterhouse,  7  E.  &  B. 
816;  Tipping  vs.  Eckersley,  2  K. 
&  J.  273;  Risien  vs.  Brown,  73 
Texas  135,  where  it  was  held  that: 
an  owner  of  a  tract  of  land  upon 
and  through  which  a  stream  of 
water  rises  and  flows,  in  selling 
parts  of  the  tract  fronting  upon 
the  stream,  may  reserve  exclusive 
water  privileges,  and  when  in 
selling  the  residue  of  the  tract  he 
sells  the  land  and  especially  con- 
veys the  water  privileges  thereto- 
fore reserved  such  grantee  holds 
such  privileges  as  against  another 
vendee  holding  a  part  of  the  tract 
upon  the  stream,  but  in  whose 
deed  the  water  privileges  were  re- 
served. 

Wood  vs.  Saunders,  L.  R.  10 
Ch.  582;  Finlinson  vs.  Porter,  L. 
R.  10  Q.  B.  188;  United  Land  Co. 


§  92.]  COMMOX    LAW   THEORIES.  143 

§  92.  Prescription. — It  is  laid  down  by  the  earlier  English 
authorities,  that  all  incorporeal  rights  ma\'  be  acquired  by 
acquiescence  and  use  and  lost  by  neglect  and  disuse,  and  that 
a  right  to  any  hereditament  may  be  acquired  by  lapse  of  time.^ 
This  method  of  acquisition  has  been  denominated  by  both  the 
common  law  writers  and  civilians.  "  Prescription."  And  a 
fiction  was  indulged  in  by  the  authorities  in  this,  that  every 
prescription  supposes  a  grant  once  made  and  afterwards  lost.^ 
Under  the  early  rule  of  the  common  law  an  enjoyment  to  con- 
fer atitle  by  prescription  to  an  easement  of  the  use  of  water 
must  have  continued  in  legal  phrase,  "during  the  time 
whereof  the  memorj^  of  man  runneth  not  to  the  contrary." 
But  the  modern  rule,  both  in  this  countr}'  and  England,  has 
been  limited  to  the  period  of  twenty  j^ears,  because  of  the 
extreme  difficulty  of  giving  proof  of  enjoying  for  so  long  a 
time  as  that  laid  down  b}^  the  English  law  writers.^  But  it 
has  for  a  long  time  been  settled  that  the  owner  of  land  upon 
the  margin  of  a  natural  stream  may  by  long  continued  user 
acquire  a  right  to  use  the  water  in  excess  of  and  not  justified 
by  his  natural  riparian  rights. ^  Long  enjoyment  of  an  ease- 
ment establishes  a  right  to  the  use  of  the  water,  or  in  other 
words  to  the  easement  itself,  but  it  does  not  effect  the  owner- 
ship of  the  soil  under  the  water.  ^  The  doctrine  that  ease- 
ments of  every  sort  may  be  acquired  by  an  adverse  user  for  the 
period  of  time  limited  by  the  statute  of  limitations    for  the 

vs.  Great  Eastern  Ry.  Co.,  L.  R.  vs.    Rand,    2   Brad.    &   Bing  667; 

10  Chan.  586;  Collins  vs.  Slade,  23  Cross  vs.  Lewis,  2  B.  &  Cress.  686; 

W.  &  R.   199;  Gould  on  Waters,  Mason  vs.   Hill,  Barn  &  Add.  76; 

Chapter  X.  Ricard  vs.  Williams,  7  Wheat.  59; 

iBracton  L.  4.  Coolidge  vs.  Leanned,  8  Pick.  504; 

2 1  Bla.  Com.  75;  2  lb.  263.  Sargent  vs.  Ballard,  9  Pick.  251; 

3  Gould  on  Waters,  Chap.  XI  ;  Melvin  vs.  Whiting,  10  Pick.  295; 
Angell  on  Water-courses,  Chap.  VI  Barnes  vs.  Haynes,   13  Grey  188; 

4  Darwin  vs.  Upton,  2  Wnis.  Shumway  vs.  Simons,  i  Vt.  53; 
Saund.  175;  Holcraft  vs.  Heel,  i  Wakins  vs.  Peck,  13  N.  H.  360; 
Bos.  &  Pul.  400;  Campbell  vs.  Townsend  vs.  McDonald,  12  N.  Y. 
Wilson,    3   East,  294;  Daniels  vs.  381. 

North,    II    East,  371;     Bealy    vs.  6 Schuylkill  Nav.  Co.  vs.  Stover, 

Shaw,    6    East,  208;    Balston    vs.  2    Grand    Cas.    462;    Keyser    vs. 

Bensted,  i  Camp.  463;  Barker  vs.  Covell,  62  N.  H.  283. 
Richardson,  4  B.  &  Aid.  578;  Gray 


144 


COMMON    LAW    THEORIES. 


[  §  92,  93 


right  of  entry  upon  land,  has  been  adopted  and  very  frequently 
applied  by  the  Supreme  Court  of  the  United  States. ^  The  enjoy- 
ment and  exercise  of  the  use  must  be  continuous,^  notorious^ 
and  under  a  claim  of  right,  with  the  knowledge  of  the  owner,  ^ 
and  adverse,  in  the  exact  sense  that  the  possession  of  the  land 
must  be  so  as  to  warrant  the  application  of  the  statute  of  lim- 
itations in  an  action  of  ejectment.'^ 

§  93.  License. — There  is  another  means  by  which  a  person 
can  acquire  the  use  of  water  in  excess  of  that  which  naturally 
belongs  to  him  by  virtue  of  his  ownership  in  the  land  adjoin- 
ing the  stream,  and  that  is  by  license.  License  is  a  permis- 
sion to  do  a  certain  act  or  series  of  acts  upon  another's  land 
without  possessing  any  estate  therein;^  and  it  may  be  given 
in  writing,  or  in  some  cases  verbally,  notwithstanding  the 
statute  of  frauds."  As  for  instance  the  privilege  of  floating 
timber  down  a  private  stream,  which  does  not  involve  the  oc- 


1  Bowman  vs.Wathen,  i  How.  189. 

2Boliver  Mfg.  Co.  vs.  Neponset 
Mfg.  Co.,  16  Pick.  241;  Cowell  vs. 
Thayer,  5  Met.  257;  Davis  vs. 
Brigham,  29,  Maine,  391;  Kent  vs. 
Waite,  10  Pick.  138;  Branch  vs. 
Doane,  17  Conn.  402;  18  Conn.  233; 
Durgin  vs.  Leighton,  10  Mass.  56; 

SGifford  vs.  Winnipesseogee 
Lake  Co.,  52  N.  H.  262;  Solo- 
mon vs.  Vintner's  Co.,  4  H.  &  N. 
602;  O'Neil  vs.  Blodgett,  53  Vt. 
213;  Emor}^  vs.  Raleigh  Ry.  Co., 
102  N.  C.  209. 

4Livett  vs.  Wilson,  3  Bing.  115; 
Flora  vs.  Corbean,  38  N.  Y.  iii; 
Smith  vs.  Miller,  11  Gray,  145. 

5Colvinvs.  Burnet,  17  Wend.  562; 
Hart  vs.  Vose,  19  Wend.  365;  Dyer 
vs.  Depui,  5  Whart.  (Pa.)  584. 

^Bouvier's  Law  Dictionary;  An- 
gell  on  Water-courses,  Sec.  285; 
Gould  on  Waters,  Sec.  322;  3  Kent 
Com.  452;  Miller  vs  Auburn  & 
Syr.  Ry.  Co.,  6  Hill  N.  Y.  61. 

73  Kent  Com.    452;   Taylor   vs. 


Waters,  7  Taunt.  384;  Wood  vs. 
Leadbetter,  13  M.  &  Welsh.  843; 
Murrell  vs.  Mackman,  24  Mich. 
279,  where  the  court  held  that  a 
license  is  a  permission  to  do  some 
act  or  series  of  acts  on  the  land  of 
the  licensor,  without  having  any 
permanent  interest  in  it.  It  is 
founded  on  personal  confidence, 
and  is  therefore  not  assignable.  It 
may  be  in  writing  or  by  parol;  it 
may  be  without  consideration ;  it 
is  subject  to  revocation  and  is  not 
within  the  statute  of  frauds. 

Wetmarsh  vs. Walker,  i  Met.  313; 
Maxwell  vs.  Bay  City  B.  Co.,  41 
Mich.  454;  Fentiman  vs.  Smith,  4 
Fad.  107;  Cook  vs.  C.  B.  &  Q.  Ry. 
Co.,  4  Iowa  451;  Beaver  vs.  Reed, 
9  O.  B.,  (Can.)  152;  Rerick  vs. 
Kern,  14  vSerg.  &  R.  267;  16  Am. 
Dec.  497;  Ricker  vs.  Kelly,  i 
Green'l,  117;  10  Am.  Dec.  38; 
Chicago  City  Ry.  Co.  vs.  People, 
73  111.  541. 


§  93,  94].  COMMON    LAW    THEORIES.  145 

cupation  of  the  land  or  diversion  of  the  water  into  a  new  chan- 
nel.^ But  in  case  it  does  involve  the  occupation  of  the  land 
for  any  purpose  it  must  be  in  writing. ^  A  parol  license  which 
has  not  been  executed  in  whole  or  in  part  may  be  revoked  al- 
though a  consideration  for  it  has  been  paid;  and  it  terminates 
with  the  death  of  the  licensor.'^  But,  on  the  other  hand,  if  a 
license  under  the  authority  of  a  parol  license,  for  a  considera- 
tion, makes  large  investments  for  the  enjoyment  of  some  privi- 
lege the  licensor  will  be  estopped  from  making  a  revocation.^ 

§  94.  Eiuiiieut  Domain. — Eminent  Domain  is  the  right  which 
the  government  retains  over  the  estates  of  individuals  to  ap- 
propriate them  to  the  public  use.  This  right  of  the  State  is 
universally  acknowledged.  But  it  is  a  rule  founded  in  equity 
and  is  laid  down  by  jurists,  as  also  an  acknowledged  principle 
of  universal  law,  that  no  estate  can  be  condemned  for  this 
purpose  without  just  compensation  to  the  owner  thereof.  The 
right  to  a  water-course  is  a  freehold  right  and  a  right  of  which 
no  man  can  be  deprived  but  by  a  lawful  judgment  of  his  peers 
or  b}^  due  process  of  law.  That  the  State  has  power  to  appro- 
priate a  water-course  to  public  use  is  indisputable;  but  to  ren- 
der the  exercise  of  this  power  valid  a  full  compensation  must 


1  Rhodes  vs.  Otis,  33  Ala.  578;  Purcell,  i  Dev.  &  Bat.  492;  Gould 
Pursell  vs.  Stover,  no  Pa.  43.  on  Waters,  Sec.  324. 

2  Morrill  vs.  Mackman,  24  Mich.  4 Lane  vs.  Miller,  27  Ind.  524; 
279;  Banghart  vs.  Flummerfelt,  43  Raritan  Water  Power  Co.  vs. 
N.J.  L.  28.  Veghte,  21    N.  J.  Eq.  463,  where 

^Beidelman  vs.  P^oulk,  5  Watts,  the  Court  held  upon  the  subject 
308;  Dark  vs.  Johnson,  55  Pa.  164,  of  revocation:  that  if  the  consent 
where  it  was  held  that:  generally  was  a  fact,  however  obtained,  and 
a  parol  license  is  revocable  at  the  permanent  works  and  iniprove- 
will  of  the  licensor;  and  it  is  re-  nients  erected  in  pursuance  there- 
vocable  although  a  consideration  of  at  great  expense,  equity  will 
has  been  paid  for  it.  not,  to  the  extent  that  the  license 

Owen  vs.  Field,    12  Allen,  457;  is  executed,  disturb  it  or  permit 

Hewlins   vs.    Shippan,  5  B.  &  C.  its  revocation. 

22;  Bryant  vs.  Whistler,  8  B.  &  C.  Hall    vs.    Chaffee,    13    Vt.    150; 

288;  Totel  vs.  Bonnefoy,    123  111.  Foot  vs.  New  Haven,  23  Conn.  214; 

653;   23    111.   App.    55;   Taylor  vs.  Morse  vs.  Copeland,  2  Gray,  302. 
Gerrish,  59  N.  H.  569;  Bridges  vs. 


146 


COMMON    LAW    THEORIES. 


[§94 


be  made  to  the  individuals  affected  by  the  appropriation.^ 
And  for  the  protection  of  this  right  the  fifth  article  of  the 
amendments  to  the  Constitution  of  the  United  States,  "  nor 
shall  private  property-  be  taken  for  public  use  without  just 
compensation"  was  added.  And  a  similar  article  may  be 
found  in  the  Constitutions  and  Bills  of  Rights  of  the  several 
States.  But  with  all  questions  of  this  nature  the  final  de- 
cision rests  with  the  Courts  in  determining  whether  the  ap- 
propriation has  any  element  of  public  utility.^ 

The  use  is  public  when  it  promotes  the  interest  of  a  con- 
siderable portion  of  the  community,  although  it  may  not  bene- 
fit the  community  at  large. =^  But  lands  or  rights  to  waters 
cannot  be  taken  for  a  purely  private  purpose  without  regard 
to  the  public  good,  although  compensation  is  made  or  ten- 
dered.'^     So,  as  we  have  said  before,  under  the  common  law 


lUuited  States  vs.  Jones,  109  U. 
S.  406,  where  the  Supreme  Court 
held  that:  The  power  to  take 
private  property  for  public  uses, 
generally  termed  the  right  of 
eminent  domain,  belongs  to  every 
independent  government.  It  is 
an  incident  of  sovereignty,  and 
requires  no  constitutional  recog- 
nition. The  provision  found  in 
the  Fifth  Amendment  to  the  Fed- 
eral Constitution  and  in  the  Con- 
stitution of  the  several  States  for 
just  compensation  for  the  prop- 
erty taken  is  merely  a  limitation 
upon  the  use  of  the  power. 

See  also  i  Bla.  Com.  139;  Boom 
vs.  Patterson,  98  U.  S.  406;  Varick 
vs.  Smith,  5  Paige  137;  Spring  vs. 
Russell,  7  Maine,  273;  Dey  vs. 
Stetson,  8  Maine,  365;  Lombard 
vs.  Starns,  4  Cook,  60;  Gould  on 
Waters,  Chapter  VIII;  Vattel  Ch. 
20  S.  244. 

SSecombe  vs.  Ry.  Co.,  23  Wall. 
108;  Talbott  vs.  Hudson,  16  Gray 
417;  Lowell  vs.  Boston,  iii  Mass. 
454;  Carter  vs.  Tide  Water  Co.,  18 


N.  J.  Eq.  54;  Booth  vs.  Woodbury, 
32  Conn.  118;  Allen  vs.  Joy,  60 
Maine,  124;  Varick  vs.  Smith,  5 
Paige,  137;  9  Paige  547;  Harris  vs. 
Thompson,  9  Barb.  350;  Bloodgood 
vs.  Mohawk  Ry.  Co.,  18  Wend.  56. 

SWyland  vs.  Middlesex,  4  Gray, 
500;  Boston  Water  Power  Co.  vs. 
Boston  Ry.  Co.,  16  Pick.  512;  Red- 
dell  vs.  Bryan,  14  Md.  444;  Graff 
vs.  Baltimore,  10  Md.  544;  Tide 
Water  Co.  vs.  Coster,  18  N.  J.  Eq. 
518;  Hagar  vs.  Reclamation  Dis- 
trict, III  U.  S.  701;  Foster  vs.  Park 
Commissioners,  133  Mass.  321; 
Wurts  vs.  Hoagland,  114  U.  S.  606. 

■iFlemming  vs.  Hull,  73  Iowa 
598;  Embury  vs.  Conner,  3  N.  Y. 
511;  State  vs.  Driggs  Drainage  Co., 
45  N.  J.  L.  91;  Re  Niagara  Falls 
Ry  Co.,  108  N.  Y.  375;  Lorenz  vs. 
Jacob  63  Cal.  73,  where  the  Court 
held  that  the  right  of  eminent  do- 
main is  restricted  to  the  taking  of 
private  property  for  public  use. 
It  can  not  be  exercised  in  favor  of 
the  owners  of  mining  claims  to 
enable  them  to  obtain  water  for 


§9^J- 


COMMOX    LAW    THEORIES. 


147 


rules  the  riparian  rights  of  the  owners  of  land  bordering  upon 
the  same  water-course  are  equal,  and  the  State,  although  pos- 
sessing an  almost  unlimited  power  of  appropriating  property 
by  virtue  of  its  right  of  eminent  domain  as  far  as  public  pur- 
poses are  concerned,  can  not  give  any  more  extensive  or  ex- 
clusive rights  to  one  proprietor,  under  the  color  of  a  public 

their  own  use  in  working  such 
claims,  though  the  intention  may 
be  also  to  supply  water  to  others 


for  mining  and  irrigating  pur- 
poses, and  Mr.  Chief  Justice 
Morris  said:  "  The  findings  are  in- 
sufficient to  show  that  the  use  for 
which  the  water  was  intended  was 
public  use,  and  it  clearly  appears 
from  the  evidence  that  the  main 
and  substantial  object  of  plaintiffs 
is  to  use  the  water  in  working  their 
own  mining  claims.  Private  prop- 
erty can  not  be  taken  for  such  a 
purpose." 

See  the  Wilmington  Canal  and 
Reservoir  Co.  vs.  Dominguez,  50 
Cal.  505;  Cummings  vs.  Peters,  56 
Cal.  593;  Bankhead  vs.  Brown,  25 
Iowa,  540;  Liskeard  Union  vs. 
Liskeard  Water  Co.  7  Q.  B.  505. 
See  also  San  Diego  L.  &  T.  Co.  vs. 
Neale,  88  Cal.  50;  and  Spring  Val- 
ley W.  W.  vs.  Drinkhouse,  92  Cal. 
528,  where  it  is  held  that  under 
Sections  1238  and  1239  of  the  Code 
of  Civil  Procedure  a  corporation 
organized  and  existing  under  the 
laws  of  the  United  States  for  the 
purpose  of  supplying  the  inhabi- 
tants of  an  incorporated  city  with 
water  may  exercise  the  right  of 
eminent  domain  for  the  acquisi- 
tion of  land  as  part  of  a  reservoir 
site  which  is  claimed  by  the  cor- 
poration to  be  necessary  for  it  in 
the  prosecution  of  the  business  for 
which  it  was  created;  also  before 
land  can  be  taken  for  a  puldic  use 


it  must  appear  that  the  taking  is 
necessary  for  such  use,  and  such 
necessity  is  a  question  of  fact  to 
be  determined  by  the  Court  or 
jury,  in  view  of  all  the  evidence 
in  the  case,  the  burden  of  proof 
being  upon  the  corporation  seek- 
ing the  condemnation  to  show  that 
the  land  is  reasonably  required  for 
the  purpose  of  effecting  the  object 
or  carrying  on  the  business  for 
which  the  corporation  was  organ- 
ized; also  that  in  determining 
whether  land  is  reasonably  re- 
quired for  a  reservoir  site  by  a 
water  compau)-  organized  to  sup- 
ply a  city  with  water,  not  only  the 
present  demands  of  the  public 
upon  the  water  company  but 
those  which  may  be  fairly  antici- 
pated on  account  of  the  future 
growth  of  the  city  are  to  be  con- 
sidered. 

But  see  the  case  of  Aliso  Water 
Co.  vs.  Baker,  95  Cal.  268;  where 
the  Court  held  that:  In  an  action 
by  a  water  company  to  condemn 
water  rights  and  a  strip  of  land  a 
complaint  which  alleges  that  it  is 
necessary  to  condemn  and  take 
the  water  rights  in  order  to  carry 
out  the  purpose  of  the  water  com- 
pau)'  to  supply  a  "  farming  neigh- 
borhood," composed  of  land  rip- 
arian to  the  creek  with  water  for 
domestic  use  and  irrigation,  but 
which  does  not  otherwise  show 
whether  the  "farming  neighbor- 
hood" is  inhabited,  not  only  fails 


148  COMMON    LAW    THEORIES.  [§  94,  95 

use,  than  it  can  give  to  all  of  the  proprietors  who  are  equally 
interested  in  the  same  stream.^ 

§  95.  Summary. — In  summing  up  this  chapter  we  will  say- 
that  under  the.  common  law  doctrine  in  its  most  general  form 
all  property  in  water-courses  and  inland  lakes,  whether  the 
same  are  actually  navigable  or  not,  is  held  sacred  to  the  com- 
mon use  alike  of  all  the  riparian  owners  upon  their  borders, 
as  an  incident  to  their  ownership  of  the  soil;  that  the  nature 
of  their  ownership  of  the  water  itself  is  simpl}'  usufructuary^ 
and  that  each  proprietor  may  reasonably  use  the  water  for  any 
purpose  as  it  passes  through  or  bj^  his  land;  but  always  pro- 
vided that  he  must,  after  having  used  it,  return  it  without 
substantial  diminution  in  quantity  or  any  material  change  in 
quality  to  its  natural  bed  or  channel  before  it  leaves  his  own 
land,  so  that  it  will  reach  his  neighbor  below  in  its  full^ 
original  and  natural  condition.  We  have  also  seen  that  the 
natural  current  of  a  stream  must  neither  be  obstructed  nor 
accelerated  by  any  proprietor;  that  a  riparian  proprietor  is 
entitled  to  all  accretions  and  relictions  that  may  be  added  to 
his  lands  caused  by  the  influence  of  the  winds  or  tides,  and 
thus  always  giving  him  right  of  access  to  and  from  his  estate 
to  the  water,  or  to  and  from  the  water  to  his  estate;  that  he 
also  has  the  exclusive  right  of  fishery  opposite  his  land,  and 
no  one  can  erect  any  obstruction  in  the  stream  that  shall  bar 
him  from  that  right.  Also,  under  the  common  law,  no  pri- 
ority of  use  or  appropriation  by  any  one  proprietor  can  give 

to  show  that  the  use  for  wtiich  con-  in  an  action  to  condemn  water 
demnation  is  sought  is  a  public  rights  which  describes  them  gen- 
use,  but  shows  affirmatively  that  erally  as  all  the  rights  of  each  of 
it  is  not;  and  also  the  term  the  defendants,  whether  as  ripa- 
"  neighborhood  "  is  an  indefinite  rian  owners  or  acquired  by  appro- 
phrase  and  may  consist  of  but  two  priation,  adverse  use,  or  prescrip- 
houses  upon  a  single  farm;  and  as  tion,  except  for  domestic  use  and 
the  pleading  must  be  construed  reasonable  use  of  their  riparian 
most  strongly  against  the  pleader  lands,  is  uncertain  in  not  showing 
it  must  be  understood  that  the  definitely  what  water  rights  are 
farming  neighborhood  to  be  bene-  proposed  to  be  condemned,  and  is 
fitted  consists  of  one  farm  only,  insufficient  as  against  a  special 
and  this  the  propert}'  of  the  plain-  demurrer, 
tiff;  and  also  where   a  complaint  i  See  cases  cited  above. 


§  95].  COMMON    LAW    THEORIES.  149 

him  any  higher  or  more  extensive  rights  than  those  which 
belong  to  all  the  other  proprietors,  either  higher  up  or  lower 
down  on  the  stream:  and,  although  some  of  them  may  have 
come  long  after  the  first  proprietor  settled  upon  the  stream,  all 
the  proprietors  who  are  interested  in  the  stream  must  share  in 
its  use  equally;  and  if  one  proprietor  acquires  more  extensive 
rights  than  those  mentioned,  against  the  other  riparian  pro- 
prietors, he  must  do  so  by  obtaining  a  grant  or  license  from 
all  who  are  effected  thereby,  or  by  prescription,  which  pre- 
supposes a  grant.  And  lastly,  we  have  seen  that  the  State, 
by  virtue  of  its  right  of  eminent  domain,  can  not  take,  injure 
or  impair  any  of  these  rights  in  and  to  the  use  of  the  waters 
of  the  stream  of  any  riparian  proprietor  without  due  compen- 
sation therefor  and  then  only  when  it  is  for  some  public  use 
or  benefit. 


CHAPTER  IV. 
Tlie  Arid  Region  Doctrine. 


Sections. — 

96.  Nature    and   extent   of   sub- 

ject treated  in  chapter. 

97.  Cause  of  the  change. 

98.  Same.  —  Common   law  inap- 

plicable to  the  Arid  Region. 

99.  Same. — Authorities. 
100.  History  of  change. 
loi.  Same. — Continued. 

102.  Same.  —  Mining    Rules    and 

Customs. 

103.  Same. — First  legislation  upon 

the  subject,  by  State. 

104.  Same. — Early  court  decisions 

105.  Same. — Continued. 

106.  Decisions   favoring   doctrine 

— Irvin  vs.  Phillips. 

107.  Same. — Bear  River,  etc..  Wa- 

ter Co.  vs.  N.  Y.  Mining  Co. 

108.  Same. — Clough  vs.  Wing. 

109.  Decisions  of  principle  based 
upon  doctrine  of  presumption. 

no.  Same. —  Continued  —  Conger 
vs.  Weaver. 


111.  Appropriation  as  against  the 

United  States. 

112.  Appropriation  prior  to  patent 

isstied  before  Act  of  1866. 

113.  The  Act  of  Congress  of  July 

26th,  1866. 

114.  Same. — Continued — Cause  of 

passage  of  Act. 

115.  Legal  effect  of  the  Act. 

116.  Same. —  Act   of   Congress   of 

July  9th,  1870. 

117.  Same. — Construction  of   Act 

of  1870. 

118.  Acts  of  Congress  subsequent 

to  1870. 

119.  Same. — Acts    of    March    3d, 

1891. 

120.  Same. — Acts  of   Congress  of 

1889  and  1890. 

121.  Future  Acts  of  Congress  on 

the  subject. 

122.  Summary. 


§  96.  Nature  and  Extent  of  Subject  Treated  in  Ciiapter. — 

In  the  preceding  chapter  we  have  seen  that  under  the  com- 
mon law  doctrine,  as  decided  by  the  general  consensus  of  En- 
glish and  American  decisions,  the  rights  of  riparian  proprie- 
tors in  the  use  of  water  of  running  streams  and  inland  lakes 
were  superior  and  paramount  to  the  rights  of  others,  by  virtue 
of  their  right  being  an  incident  to  their  ownership  of  the  land 
bordering  upon  the  stream  and  arising  ex  jure  naturae.      Also 


§  96,  97].  ARID    REGION    DOCTRINE.  151 

that  these  rights  of  the  riparian  proprietor  existed  whether 
they  chose  to  exercise  them  or  not,  to  the  exclusion  of  all 
others  desiring  to  exercise  them;  that  these  rights  did  not  de- 
pend upon  occupanc}',  and  were  not  limited  by  the  prior  occu- 
pation of  others  not  amounting  to  an  adverse  enjoyment  by 
prescription,  but  that  the  rights  of  all  of  the  proprietors  upon  a 
stream  were  equal,  and  each  one  being  entitled  to  a  reasonable 
use  of  the  stream,  provided  that  he  did  not  injure  any  of  his 
neighbor's  rights  in  and  to  the  same,  and  that  it  was  wholly 
immaterial  as  to  who  is  first  in  time. 

But  ever  since  that  section  of  this  country  located  west  of 
the  looth  meridian,  and  known  as  the  "Arid  Region,"  first 
began  to  be  peopled  by  the  Anglo-Saxon  race,  following  at  first 
mining  as  an  occupation,  and  afterwards  with  increasing  num- 
bers settling  down  to  agricultural  and  mechanical  industries, 
a  great  change  from  the  old  common  law  theories  has  been 
gradually  taking  place,  until  to-day  in  some  of  the  States  and 
Territories  formed  out  of  the  "Arid  Region"  the  common  law 
theories  upon  the  subject  of  waters  are  absolutely  abolished, 
in  others  ignored,  and  in  all  modified,  particularly  with  regard 
to  the  uses  of  the  waters  of  inland  streams  and  lakes. 
The  present  chapter  will  be  devoted  to  showing  how  this 
change  was  brought  about,  and  the  application  of  the  new 
doctrines  to  the  lands  and  waters  upon  the  public  domain,  or 
that  part  owned  by  the  United  States. 

§1)7.  Cause  of  the  (ii:Mii?e. — There  were  manifest  equities 
which  demanded  that  the  common  law,  hastily  adopted  from 
a  country  so  dissimilar  in  climate  and  condition  to  that  of  the 
arid  region,  should  not  be  made  applicable  when  it  imperils 
the  most  vital  interests  of  some  of  the  richest  districts  of 
the  world.  The  rain  does  not  fall  alike  over  all  the  eartli. 
In  some  sections  of  this  country  included  in  the  arid  west  the 
annual  rainfall  amounts  to  from  thirty  to  forty  inches  per 
annum,  while  in  other  sections  it  amounts  only  to  from  six  to 
ten  inches  per  annum.  This  is  due  to  a  certain  extent  to  the 
topographical  features  of  the  country.  The  mighty  peaks  of 
the  Rocky  Mountains  tap  the  rain  clouds  and  drain  them  of 
their  moisture  before  they  reach  the  .space  over  the  dry  valleys. 


152  ARID    REGION    DOCTRINE.  [§  97,  98 

During  the  winter  season  great  masses  of  snow  are  piled  up 
in  the  mountains  and  remain  in  these  storehouses  of  nature 
until  the  summer's  sun  causes  the  snow  to  gradually  melt  and 
run  down  into  the  canyon  streams,  then  out  from  the  moun- 
tains to  the  sea,  through  the  vast  extent  of  dry  valleys,  where 
perhaps  not  a  drop  of  moisture  has  fallen  for  months.  Thus 
we  see  that  when  the  water  reaches  the  valleys  in  the  arid 
region,  on  its  way  to  the  ocean,  instead  of  being  precipitated 
nearly  equally  upon  the  earth,  as  is  the  case  in  what  is  known 
as  the  "rain  belt,"  it  is  gathered  in  channels  which  only 
touch  a  very  small  proportion  of  the  land  within  the  arid 
region,  and  under  the  rules  of  the  common  law,  as  can  be 
readily  seen,  a  lew  riparian  owners  would  control  all  of  the 
water  in  that  part  of  the  country  to  the  exclusion  of  all  others. 
Nature  clearly  designs,  in  spite  of  the  facts  above  set  forth  as 
to  the  inequality  of  precipitation,  that  the  rain  should  still  be 
permitted  to  shed  its  blessings  on  all;  and  that  a  non-riparian 
land  owner  should  not  be  prevented  by  a  riparian  ov^^ner  from 
securing  his  just  proportion  of  water  simply  because  owing  to 
the  topographical  features  which  are  beyond  his  remedy  or 
control  the  water  granted  to  him  drains  from  its  storage 
source  in  the  mountains  into  springs,  pools,  streams,  and  riv- 
ers, and  flows  by  his  neighbor's  land,  who,  as  an  incident  of 
his  ownership  of  the  soil  adjoining  the  stream,  controls  all  of 
the  water  thereof,  although  the  same  may  be  far  in  excess  of 
what  he  and  all  the  other  riparian  owners  may  need. 

§  98.  S.uiie. — Common  Law  Inapplicable   to    the    Arid 

Region. — The  common  law  of  riparian  rights  had  its  origin  in 
Great  Britain,  under  the  conditions  of  climate  peculiar  to  its 
position,  in  the  path  of  the  great  Gulf  Stream,  in  an  atmos- 
phere laden  with  moisture,  which  is  precipitated  with  lavish 
profusion  upon  that  favored  spot.  The  law  gave  to  the  riparian 
owners,  as  an  incident  to  their  ownership  of  the  soil  adjoining 
the  water,  the  right  to  the  natural  flow  of  the  stream  without 
material  alteration  or  diminution.  He  might  use  the  water  for 
any  purpose,  provided  that  he  in  turn  restored  the  same  to  its 
natural  course,  so  that  his  riparian  neighbor  below  might  re- 
ceive the  same  unaltered  in  quality  and  undiminished  in  quan- 


§  98].  ARID   REGION    DOCTRINE.  153 

tity.  He  was  not  permitted  to  drain  his  land  so  as  to  increase 
the  quantit}'  of  water  in  the  stream  to  the  injury  of  his  neigh- 
bors below,  nor  dam  the  water  back  upon  the  lands  to  the  in- 
jury of  those  above  him;  nor  could  there  be,  according  to  that 
law,  any  diversion  or  use  of  the  water  by  one  owner  that  would 
work  material  detriment  to  any  other  owner  above  or  below 
him.  Owing  to  the  position  of  the  countrj'  and  its  climatic  in- 
fluences the  great  problem  there  to  be  solved  was  how  best  to 
drain  the  water  off  the  land  and  get  rid  of  it,  not  how  to  save 
it  in  order  to  conduct  it  upon  the  land  in  aid  of  the  husband- 
man. This  latter  has  been  the  problem  in  the  arid  portions  of 
the  earth,  and  especially  in  that  part  of  the  country  west  of  the 
looth  meridian  known  as  the  Great  Arid  Region.  So  the  cause 
of  the  change  in  the  arid  region  from  the  common  law  rules 
(as  the  same  are  in  force  in  England  and  adopted  by  the  Eastern 
States  during  the  early  history  of  our  country)  can  be  attributed 
principally  to  the  difference  in  the  condition  of  the  arid  reg- 
ion from  that  of  England  and  the  East,  as  regards  the  equal  or 
unequal  distribution  of  moisture.  Out  of  this  unequal  distri- 
bution of  rainfall  throughout  the  arid  region  grew  the  neces- 
sity of  the  early  California  mining  system  of  water  rights, 
which  was  based  on  the  primary  principle  of  free  land,  to 
which  discovery  and  appropriation  gave  title.  And  it  has 
been  held  in  a  recent  case  decided  in  the  State  of  Nevada  that 
adopting  the  common  law  adopts  only  so  much  of  that  law 
as  is  applicable  to  the  condition  of  that  State;  and  that  as  the 
condition  of  the  soil  of  Nevada  is  arid  and  unfit  for  cultivation, 
unless  irrigated  by  the  water  of  running  streams,  the  common 
law  doctrine  of  rif)arian  rights  is  unsuitcd  to  the  condition  of 
that  State.' 

1  Reno  Snieltiiif^  M.  &  R.  Works  Yeates,  21;  Flanaj^an  vs.  Phila.  42 

vs.  C.  C.  Stevenson,  20   Nev.  269;  Pa.  219;  »State  vs.  Cawood,   2  Stew. 

21  Pac.  Rep.  317;  4  I,.  R.  A.  60.  Ala.  360;  Inj^e  vs.  l\Iuri)liy,  in  .Ma. 

Also  see  vStoiit  vs.  Keys,  2  Douf^.  885;  Jennison  vs.  Kirk,    98   I'.  vS. 

(Mich.)  510.  458;  Rroder  vs.  Natonia  W.  &  Co., 

Atchison  vs.  Peterson,  20  Wall.  loi  U.  S.  274;  Osjjood  vs.  KlDorado 

510;  Lorman  vs    Benson,  8  Mich.  W.  cSi  M.   C,    56    Cal.   571;   Whart. 

18;    Report    of    Judj^es,    3    Biuu.  Ainc-r.  Law,  Sees.  30,  31. 
(Penn.)   595;    Shewell    vs.    I'ell,  3 


154  ARID    REGION    DOCTRINE.  [§  99 

§  09.  Same. — Authorities. — In    Hurtado   vs.    California/ 
Mr.  Justice  Mathews  said  upon  the  subject:     "The  Consti- 
tution of  the  United  States  was  ordained,  it  is  true,  by  descend- 
ants of  Englishmen,  who  inherited  the  traditions  of  English 
law  and  history;  but  it  was  made  for  an  undefined  and  expand- 
ing future,  and  for  a  people  gathered  and  to  be  gathered  from 
many  nations  and  many  tongues.     And  while  we  take  just 
pride  in  the  principles  and  institutions  of  the  common  law, 
we   are  not  to  forget  that  in   lands  where  other  systems  of 
jurisprudence  prevail  the    ideas  and  processes  of  civil  justice 
are  also  not  unknown.     Due  process  of  law,  in  spite  of  the 
absolutism  of  continental   governments,    is  not   alien   to   the 
Code  which  survived  the   Roman   Empire  as  the  foundation 
of  modern   civilization  in    Europe,  and  which   has  given  us 
that     fundamental    maxim    of     distributive    justice,     Suum 
cuiquc  trilmere.     There  is  nothing  in   Magna    C/iarta,  rightly 
construed  as  a  broad  charter  of  public  right  and  law,  which 
ought  to  exclude  the  best  ideas  of  all  systems  and  of  every 
age  ;  and  as  it  was  the  characteristic  principle  of  the  common 
law  to  draw  its  inspiration  from  every  fountain  of  justice,  we 
are  not  to   as.sume  that   the   forces  of  its   supply   have  been 
exhausted.     On  the  contrary,  we  should  expect  that  the  new 
and  various  experiences  of  our  own  situation  and  system  will 
mold    and   shape  it   into    new  and  not  less  useful   forms. "^ 
From  these  authorities  we  assume  that   the  applicability  of 
the  common  law  rule  to  the  physical  characteristics  of  the 
arid  west  should  be  considered,   even   if  the  law  has  been 
adopted  by  the  constitutions  of  those   States  formed  out  of 
that  region.     There  the  soil  is  arid  and  absolutely  unfit  for 
cultivation    unless    irrigated.      The    general    surface   of    the 
country  is  a  table  land  traversed  by  parallel  mountain  ranges. 
The  topographical   features  afford    great    natural   advantages 
for   conducting   the    water,  and   lands    otherwise   waste    and 
valueless  become  productive  by  irrigation.     The  very  coidi- 
tion  of  the  country  and  the  necessities  of  the  situation  impelled 

1  no  U.  S  531.  Cal.  54S;   Bear  River  vs.  N.  Y.  M. 

2 Coffin  vs.  Left  Hand  Ditch  Co.,  Co.,  8  Cal.  327;    Hill  vs.  King,   8 

6  Colo.  443;  Irwin  vs.  Phillips,  5  Cal.  338;   Merced  M.  Co.  vs.  Fre- 

Cal.    146;    Conger   vs.    Weaver,    6  niont,  7  Cal.  317. 


§99,100].  ARID    REGION    DOCTRINE.  155 

the  first  settlers  upon  the  public  lands  to  resort  to  the  diver- 
sion and  use  of  water.  This  fact  in  itself  is  a  striking 
illustration  and  conclusive  evidence  of  the  inapplicability  of 
the  common  law  rule.  For  were  that  rule  the  prevailing  one, 
and  strictl}'  followed,  all  the  water  that  is  now  being  diverted 
to  fertilize  the  soil  in  the  arid  regions  would  be  wasted  in 
the  sea. 

§100.  History  of  the  Change.— In  1848  gold  was  dis- 
covered in  California,  and  since  the  voyage  of  the  Argonauts 
there  has  been  no  such  search  for  a  golden  fleece  as  this  which 
now  commanded  the  attention  of  the  world.  By  sailing  ves- 
sels and  steamships  over  the  ocean,  b}'  prairie-schooners  and 
all  sorts  of  vehicles  drawn  b}^  horses,  oxen  and  other  draft 
animals,  by  riding  and  on  foot,  the  motley  throng  from  all 
parts  of  the  earth  rushed  to  the  "diggins."  Of  nationalities 
the  flow  from  Europe  alone  equalled  in  variety  that  of  the 
mediaeval  crusades,  with  notable  prominence  to  the  leading 
types,  among  which  could  be  seen  the  self-complacent  Briton, 
the  methodic  and  reflective  German,  and  the  versatile  Gaul. 
But  all  parts  of  the  world  contributed  to  swell  the  list. 
Africa  was  represented  by  the  orthodox  negro,  by  the  swarthy 
Moors,  and  the  straight  featured  Abyssinians.  Asia  and  Aus- 
tralasia provided  their  share  in  Mongolians,  lithe  and  diminu- 
tive Malays,  the  dark  skinned  Hindoos,  and  the  well  formed 
Maoris,  the  Kanakas  and  the  stately  turbaned  Ottoman.  The 
ubiquitous  Hebrews,  ever  to  be  found  in  the  wake  of  move- 
ments offering  trade  profits,  the  Hispano-Americans  and  the 
half  naked  Aborigines,  all  were  there,  laboring  side  by  side 
with  their  American  brothers,  the  sturdy  Yankee,  who 
thronged  in  vast  numbers  from  the  Kastern  States.  The 
population  of  California,  which  in  1848  numbered  only  from 
five  to  six  thousand,  in  1849  numbered  nearly  one  hundred 
and  ten  thousand  souls.  Scattered  over  a  territory  that 
belonged  almost  entireh'  to  the  public  domain  of  the  United 
States,  that  motley  throng  of  people  started  in  the  West  the 
mining  industry  of  this  country,  which  became  and  still  is, 
in  man}'  of  the  Pacific  States  and  Territories,  of  paramount 
importance,  and  destined,  from  the  physical  features  of  the 
country,  to  always  remain  so. 


15G  ARID    REGION    DOCTRINE.  [§  101 

§  101.  Siime— Continued. —  Coming  as  these  immigrants 
did  from  all  countries  of  the  world,  and  differing  in  their 
habits,  customs  and  religious  ideas,  and  restrained  by  no 
law  save  that  of  superior  physical  force,  and  not  even  agree- 
ing whence  the  laws  by  which  they  would  consent  to  be  gov- 
erned should  eminate,  these  multitudes  of  men  settled  in 
every  direction  throughout  the  mining  districts  of  the  Sierra, 
Nevada  and  Coast  Range  Mountains.  The  immigrants  who 
came  by  sea,  speaking  broadly  and  with  all  due  regard  to 
exceptions,  were  pioneers  not  particularly  beneficial  to  the 
settlement  of  an  entirely  new  country.  Belonging,  as  a  great 
many  did,  to  the  criminal  classes  of  Europe  and  the  Eastern 
States,  they  embraced  much  of  the  abnormal  and  a  great  deal 
of  the  criminal  and  vicious  in  early  California  life.  The  bet- 
ter classes  might  build  cities  and  organize  society,  but  there 
were  those  among  them  who  for  a  time  made  the  cities  hot 
beds  of  vice  and  corruption,  and  converted  the  social  fabric  into 
a  body  nondescript,  at  the  sight  of  which  the  rest  of  the  world 
stood  wrapped  in  apprehension.  But,  fortunately  for  the 
future  of  California  and  the  countr}'  at  large,  there  was  a  class 
of  people  in  this  mad  rush  to  the  Pacific  Coast  to  v^diom,  even 
when  their  visions  of  suddenly  acquired  wealth  had  been  dis- 
pelled, sober  second  thought  and  strength  came;  and  who 
readily  adapted  themselves  to  the  several  other  fields  of  labor 
from  which  they  might  wrest  more  surely  though  slowly  the 
fortune  withheld  by  fickle  chance  in  the  gold  fields.  And  here 
the  overland  immigrants  as  a  mass  had  the  advantage  in  num- 
bers and  in  many  other  respects.  Coming,  as  the  most  of 
them  did,  from  the  small  towns  and  villages  and  the  farms 
of  the  interior,  or  from  the  young  settlements  on  the  western 
frontier,  and  accustomed  to  a  rugged  and  simple  life,  they 
craved  less  excitement.  And  being  honest,  industrious, 
thrifty  and  self-reliant,  the}^  could  readily  fall  back  upon 
familiar  toil  and  find  a  potent  ally  in  the  cultivation  of  the 
soil  and  in  mechanical  industries.  A  large  proportion  of  this 
class  of  settlers  indeed  had  come  to  California  to  cast  their 
lot  for  all  the  time  in  a  western  home.  And  fortunately  for 
California  and  also  for  the  great  west,   this  latter  class  living 


§  101,   102].  ARID    REGION    DOCTRINE.  157 

nearer  to  the  gold  fields,  not  only  arrived  upon  the  scene 
among  the  first  but  also  in  greater  numbers  than  all  other 
classes  put  together,  and  at  the  close  of  the  year  1849  i^early 
sixty  thousand  American  citizens  were  upon  the  groimd  and 
actively  engaged  in  building  up  the  future  State  of  California. 

§  102.  Same. — 31iiiiiii::  Rules  and  Customs. — This  Ameri- 
can element  preponderated,  and  the  Yankee  fancied  himself 
over  all  with  his  political  and  commercial  supremacy,  the  more 
so  because  he  was  within  the  confines  of  territory  owned  by  his 
own  country,  which  at  all  hazards  had  to  be  maintained  and 
protected,  to  the  exclusion  of  the  laws  and  customs  of  all  other 
nationalities.  This  element  being  full  of  great  projects  and 
happy  devices  for  surmounting  obstacles,  even  to  the  achiev- 
ing of  the  seemingly  impossible,  and  fitted  no  less  by  indomit- 
able energy,  shrewdness  and  adaptability  than  by  political  and 
numerical  rights,  assumed  the  mastery,  and  so  lifted  into  a 
progressive  state  a  virgin  field  which  under  English  dominion 
might  have  sunk  into  a  stagnant  conserv^ative  colony;  or,  re- 
maining under  Mexican  swaj'',  an  outpost  ever  smouldering 
with  revolution.  But  this  American  element,  wherever  it 
went,  carried  with  it  that  love  of  order  and  system  and  of  fair 
dealing  which  is  the  prominent  characteristic  of  the  American 
people. 

In  every  mining  district  or  locality  the  miners  held  im- 
provised meetings,  framed  certain  rules  for  their  own  govern- 
ment and  enacted  regulations  by  which  they  agreed  to  be  gov- 
erned. These  "mining  customs"  and  "regulations"  in  the 
different  districts  have  a  marked  similarity  to  each  other,  only 
varying  in  the  several  districts  according  to  the  extent  and 
character  of  the  mines.  These  rules  were  very  simple,  and  re- 
lated to  the  acquisition  of  mining  claims  and  to  the  water  for 
the  purpose  of  working  them,  and  prescribed  the  acts  neces- 
sary to  constitute  such  an  appropriation  of  mineral  land  or 
position  upon  a  stream  as  should  give  the  claimants  prior  right 
against  all  others,  the  amount  of  work  which  would  entitle 
him  to  continued  possession  and  enjoyment,  and  what  would 
constitute  an  abandonment  of  these  rights  and  others  of  like 
character.     There  was  one  principle  embodied  in   them  all, 


158  ARID    REGION    DOCTRINE.  [§  102 

upon  which  rests  the  "Arid  Region"  doctrine  of  the  owner- 
ship and  use  of  waters,  and  that  was  the  recognition  of  dis- 
covery, followed  by  prior  appropriation,  as  the  foundation  of 
the  possessor's  title,  and  development  by  working  as  the  con- 
dition of  its  retention.  The  lands  all  being  upon  the  public 
domain  of  the  United  States  the  first  appropriator  was  held 
to  have,  within  certain  well-defined  limits,  a  better  right  than 
others  to  the  claim  he  had  taken  up;  and  in  all  controversies 
and  disputes,  except  as  against  the  government,  he  was  re- 
garded as  the  original  and  (unless  he  had  abandoned  his  claim) 
absolute  owner  from  whom  title  was  to  be  traced.  But  the 
mines  could  not  be  worked  without  water.  Without  water 
the  gold  would  forever  remain  buried  in  the  earth  or  rock. 
Therefore  it  became  oftentimes,  when  the  mining  claims  were 
not  on  the  banks  of  a  stream  or  lake,  an  important  and  neces- 
sary business  to  carry  the  water  to  the  mines  in  order  that 
they  might  be  worked.  The  waters  of  rivers  and  lakes  were 
carried  great  distances  by  means  of  ditches  and  flumes,  con- 
structed with  great  labor  and  enormous  expenditure  of  money, 
along  the  sides  of  mountains  and  through  canyons  and  ravines, 
to  supply  communities  engaged  in  mining  as  well  as  for  agri- 
cultural and  ordinar}^  domestic  consumption.  But  here  also 
the  first  appropriator  of  water  to  be  convej^ed  to  such  locali- 
ties, for  mining  or  other  beneficial  purposes,  was  recognized  as 
having  to  the  extent  of  the  actual  use  the  better  right.  The 
doctrine  of  the  common  law  respecting  the  rights  of  riparian 
owners  was  not  considered  applicable,  or  only  in  a  very  limited 
degree,  to  the  condition  of  the  miners  in  the  mountains. 
Numerous  regulations  were  adopted,  or  from  their  obvious 
justness  assumed  to  exist,  by  the  mining  communities  for 
the  protection  of  these  water  rights  and  for  the  security  of  the 
ditches  and  flumes  conducting  the  water,  not  only  between 
the  different  appropriators,  but  also  between  them  and  the 
holders  of  mining  claims  and  the  owners  of  lands  adjoining 
the  rivers  and  streams.  It  was  not  until  1851  that  there  was 
any  legislation  upon  the  subject,  at  which  time  the  State 
I^egislature  of  California  passed  an  act  relating  there  to.  ^    In 

1  See  next  section. 


§  102,  103].  ARID    REGION    DOCTRINE.  159 

i866  Congress  passed  the  first  act  relating  to  the  sale  of  min. 
eral  lands  on  the  public  domain,  the  ninth  section  of  which  re- 
lated to  the  waters  appropriated,  as  above  set  forth.  ^  So,  for 
a  period  of  eighteen  years,  from  1S48  to  1866,  proprietors  in 
mining  claims  and  water  rights  to  the  value  of  man}-  millions 
rested  only  upon  the  regulations  and  customs  of  miners  which, 
sanctioned  by  the  legislature  and  State  courts  of  California, 
constituted  all  the  law  governing  propert}-  in  mines  and  in 
water  upon  the  mineral  lands  located  upon  the  public  domain 
of  the  United  States. ^ 

§  103.  Same.  —First  Legislation  Upon  the  Subject,  by 
State. — The  first  law  upon  this  subject  enacted  by  any  legis- 
lative body  was  that  of  the  State  legislature  of  California  in 
the  year  1H51,  which  sanctioned  the  "mining  customs" 
referred  to  in  the  last  section,  and  was  as  follows:  "In 
actions  concerning  mining  claims,  proof  shall  be  admitted  of 
the  customs,  usages,  or  regulations  established,  or  in  force,  at 
the  bar  or  diggings  embracing  said  claims  and  such  customs, 
usages,  or  regulations,  when  not  in  conflict  with  the  Consti- 
tution and  laws  of  this  State,  shall  govern  the  decision  of  the 
action."  Thus  it  devolved  upon  the  legislature  of  the  new 
State  of  California  to  pass  the  first  act  declaring  these 
"mining  customs"  to  be  the  law  which  should  control  and 
govern  not  only  the  acquisition  and  retention  of  mining 
claims  but  also  the  acquisition  and  retention  of  water  rights 
necessar}'  for  working  the  same.  This  enactment  was  based 
upon  an  entirely  new  principle  governing  the  rights  of  water 
in  the  United  States,  the  law  of  priority  of  appropriation,  or 
the  first  in  time  being  the  first  in  right.  This  principle 
almost  entirely  overthrew  the  common  law  theories  in  the 
Pacific  States  as  to  the  control  and  ownership  of  the  waters  of 
natural  streams  and  lakes  where  such  waters  were  appropriated 
for  any  beneficial  use,  as  we  shall  see  in  the  further  discussion 
of  the  subject. 

ISee   Sec.   113;  act  of  Congress  670;  l-'orbes   vs.  Ciracey,  94   U.  S. 

1866;  Rev.  Stat.  U.  S.,  Sec.  2339.  762;  Jennisoii  vs.    Kirk,  98  U.  S. 

2  Atchison  vs.  Peterson,  20  Wall.  453. 
507;  Basey  vs.  Gallagher,  20  Wall. 


160  ARID    REGION    DOCTRINE.  [§  104,    105 

§  104.  Siime. — Early  (.-oiirt  Decisions. — These  "Mining 
Customs ' '  thus  having  been  originated  and  strengthened  by 
the  act  of  the  California  legislature  above  quoted,  were  in  a 
few  years  approved  to  the  fullest  extent  by  the  Courts  of  that 
State,  although  in  some  of  its  first  decisions  the  Supreme 
Court  seemed  loth  to  adopt  the  new  principle. 

In  the  case  of  Eddy  vs.  Simpson^  the  District  Court  charged 
the  jury,  on  the  trial  below,  as  follows  :  "As  a  general  prin- 
ciple, the  party  who  first  uses  the  water  of  the  stream  is  by 
virtue  of  priority  of  occupation  entitled  to  hold  the  same.  If 
a  company  or  association  of  miners  construct  a  ditch  to 
convey  water  from  a  running  stream 'for  mining  or  other  pur- 
poses, and  they  are  the  first  to  use  the  water,  locate  and 
construct  the  ditch,  they  are  legally  entitled  to  the  same  as 
their  property,  to  the  extent  of  the  capacity  of  the  ditch  to 
hold  and  convey  water.  For,  if  it  appears  that  there  is  more 
water  running  in  the  stream  than  the  ditch  of  the  first  party 
can  hold  and  convey,  then  any  other  party  may  rightfully 
take  and  use  the  surplus,  and  it  does  not  matter  whether  the 
excess  of  water  be  taken  from  a  point  above  or  below  the  dam 
of  the  first  party." 

Justice  Wells,  in  delivering  the  opinion  of  the  Supreme 
Court  reversing  the  judgment  below,  said  :  "The  rule  laid 
down  by  the  Court  below,  while  it  is  a  departure  from  all 
rules  governing  this  description  of  property,  would  be  imprac- 
ticable in  its  application,  and  we  think  that  it  is  much  safer  to 
adhere  to  known  principles  and  well  settled  law,  so  far  as  they 
can  be  made  applicable  to  the  novel  questions  growing  out  of 
the  peculiar  enterprises  in  which  many  of  the  people  of  this 
State  are  embarked." 

§105.  Same — Continued.— Also  in  the  case  of  Hill  vs. 
Newman, 2  Bryan,  Judge,  in  delivering  the  opinion  of  the 
Court,  said.  "  The  right  to  running  water  is  defined  to  be  a 
corporeal  right,  or  hereditament,  which  follows  oris  embraced 
by  the  ownership  of  the  soil  over  which  it  naturally  passes.^ 

I3  Cal.  249,  250.  105;  I  Cruise's  Digest,  39;  Angell 

25  Cal.  446,  447.  &  Ames  on  Water-Courses,  P.  3. 

3  Sackett  vs.  Whe^fton,   17  Pick. 


§  105,  106].  ARID    REGION    DOCTRIXE.  161 

"  P'rom  the  polic}-  of  our  laws,  it  has  been  held  in  this 
State  to  exist  without  private  ownership  of  the  soil,  upon  the 
ground  of  prior  location  upon  the  land,  or  prior  appropriation 
and  use  of  the  water.  The  right  to  water  must  be  treated  in 
this  State  as  it  has  always  been  treated,  as  a  right  running 
with  the  land,  and  as  a  corporeal  privilege  bestow^ed  upon  the 
occupier  or  appropriator  of  the  soil." 

But  in  other -cases  the  Supreme  Court  of  that  State  adopted 
the  new  doctrine,  in  some  instances  almost  without  discussion, 
as  though  the  rule  had  been  the  settled  law  for  ages/  and  the 
doctrine  of  prior  appropriation  became  and  still  is  settled  in 
that  State  and  other  Pacific  States  and  Territories  formed  out 
of  the  arid  region  in  opposition  to  the  common  law  theories  of 
riparian  rights.  And  it  became  settled  that  a  permanent  right 
of  property,  in  the  right  of  streams  and  inland  lakes,  which 
wholly  ran  through  or  were  situated  upon  the  public  domain  of 
the  United  States,  may  be  acquired  for  mining  or  irrigation  pur- 
poses b}'  mere  appropriation;  that  the  appropriator  may  thus 
acquire  the  right  to  divert,  use  and  consume  all  of  the  water 
so  appropriated  and  diverted  from  the  natural  flow  or  condi- 
tion of  such  streams  or  lakes  if  the  same  should  be  necessary 
for  the  purposes  of  his  mining  operations  or  the  irrigation  of 
his  land;  and  it  was  then  held  that  the  prior  appropriator 
became  the  owner  of  his  rights  to  the  water  by  virtue  of  his 
appropriation  as  against  all  the  world  except  the  United 
States  government. 

§  lOU.  Decisions  Favoriiig  Doctrine — Irwin  vs.  Phillips. 

One  of  the  first  decisions  of  the  Supreme  Court  of  California, 
where  this  subject  was  thoroughly  discussed,  was  that  of 
Irwin  vs.  Phillips  et  al.,^  decided  in  1855,  and  we  can  do  no 
better  than  to  quote  here  at  length  from  the  opinion  rendered 
by  Mr.  Justice  Heydenfeldt,  in  which  he  says  :  "It  is  insisted 
by  the  appellants  that  in  this  case  the  common  law  doctrine 
must  be  invoked,  which  prescribes  that  a  water-course  must 
be    allowed    to    flow    in    its  natural  channel.     But    upon    an 

iKelly  vs.  Natoma  W.  Co.,  6  Cal.       312.     vSee   also  next   two  st-ctious 
107;  Maeris  vs.  Bicknell,  7  Cal.  262;       and  cases  cited. 
N.  C.  &  S.  C.  Co.  vs.  Kidd.,  37  Cal.  25  Cal.  140,  146. 


162  ARID    REGION    DOCTRINE.  [§  106 

examination  of  the  authorities  which  support  that  doctrine,  it 
will  be  found  to  rest  upon  the  fact  of  the  individual  rights  of 
landed  proprietors  upon  the  stream,  the  principle  being  both 
at  civil  and  common  law  that  the  owner  of  lands  on  the  banks 
of  a  water-course  owns  to  the  middle  of  the  stream,  and  has 
the  right  in  virtue  of  his  proprietorship  to  the  use  of  the 
water  in  its  pure  and  natural  condition.  In  this  case  the 
lands  are  the  property  either  of  the  States  or  of  the  United 
States,  and  it  is  not  necessary  to  decide  to  which  they  belong 
for  the  purposes  of  this  case.  It  is  certain  that  at  the  com- 
mon law  the  diversion  of  water-courses  could  only  be  com- 
plained of  by  riparian  owners,  who  were  deprived  of  the  use,  or 
or  those  claiming  directly  under  them.  Can  the  appellants 
assert  their  present  claim  as  tenants  at  will  ?  To  solve  this 
question  it  must  be  kept  in  mind  that  their  tenancj^  is  of 
their  own  creation,  their  tenements  of  their  own  selection,  and 
subsequent,  in  point  of  time,  to  the  diversion  of  the  stream . 
They  had  the  right  to  mine  where  they  pleased  throughout 
an  extensive  region,  and  they  selected  the  bank  of  a  stream 
from  which  the  water  had  been  already  turned,  for  the  pur- 
pose of  supplying  the  mines  at  another  point. 

"  Courts  are  bound  to  take  notice  of  the  political  and  social 
condition  of  the  country  which  they  judicially  rule.  In  this 
State  the  larger  part  of  the  Territory  consists  of  mineral  lands, 
nearly  the  whole  of  which  are  the  property  of  the  public.  No 
right  or  intent  of  disposition  of  these  lands  has  been  shown 
either  by  the  United  States  or  the  State  governments,  and 
with  the  exception  of  certain  State  regulations,  very  limited 
in  their  character,  a  system  has  been  permitted  to  grow  up  by 
the  voluntarj^  action  and  assent  of  the  population,  whose  free  and 
unrestrained  occupation  of  the  mineral  region  has  been  tacitly 
assented  to  by  the  one  government,  and  heartily  encouraged 
by  the  expressed  legislative  policy  of  the  other.  If  there  are, 
as  must  be  admitted,  many  things  connected  with  this  system, 
which  are  crude  and  undigested,  and  subject  to  fluctuation  and 
dispute,  there  are  still  some  which  a  universal  sense  of  neces- 
sity and  propriety  have  so  firmlj^  fixed  as  that  they  have  come 
to  be  looked  upon  as  having  the  force  and  eflfect  res  judicata. 
Among  these  the  most  important  are  the  rights  of  miners  to  be 


§  106.]  ARID    REGION    DOCTRINE.  163 

protected  in  the  possession  of  their  selected  localities,  and  the 
rights  of  those  who,  bj-  prior  appropriation,  have  taken  the 
waters  from  their  natural  bed  and  by  costly  artificial 
works  have  conducted  them  for  miles  over  mountains  and 
ravines,  to  supply  the  necessities  of  gold-diggers,  and  without 
which  the  most  important  interests  of  the  mineral  region  would 
remain  without  development.  So  fully  recognized  have  be- 
come these  rights,  that  without  any  specific  legislation  con- 
ferring or  confirming  them ,  they  are  alluded  to  and  spoken  of 
in  the  various  acts  of  the  Legislature  in  the  same  manner  as  if 
they  were  rights  which  had  been  vested  by  the  most  distinct 
expression  of  the  will  of  the  law-makers;  as  for  instance  in 
the  Revenue  Act,  '  canals  and  water-races  '  are  declared  to  be 
property  subject  to  taxation,  and  this  when  there  was  none 
other  in  the  State  than  such  as  were  devoted  to  the  use  of 
mining.  Section  2  of  Article  IX  of  the  same  Act,  providing 
for  the  assessment  of  companies  and  associations,  among 
others  mentions  '  dam  or  dams,  canal  or  canals,  or  other 
works  for  mining  purposes.'  This  simply  goes  to  prove  what 
is  the  purpose  of  the  argument,  that  however  much  the  policy 
of  the  State,  as  indicated  by  her  legislation,  has  conferred  the 
privilege  to  work  mines,  it  has  equally  conferred  the  right  to 
divert  streams  from  their  natural  channel;  and  as  these  two 
rights  stand  upon  equal  footing,  when  they  conflict,  they  must 
be  decided  by  the  fact  of  priority,  upon  the  maxim  of  equity, 
qici  prior  est  in  tanpore,  potior  est  in  jicre.  The  miner  who 
selects  a  piece  of  ground  to  work,  must  take  it  as  he  finds  it, 
subject  to  prior  rights,  which  have  an  equal  equity,  on  account 
of  an  equal  recognition  from  the  sovereign  power.  If  it  is 
upon  a  stream,  the  waters  of  which  have  not  been  taken  from 
their  bed,  they  can  not  be  taken  to  his  prejudice;  but  if  they 
have  been  already  diverted,  and  for  as  high  and  as  legitimate 
purpose  as  the  one  he  seeks  to  accomplish,  he  has  no  right  to 
complain,  no  right  to  interfere  with  the  prior  occupation  of 
his  neighbor,  and  must  abide  the  disadvantages  of  his  own 
selection.  "1 

1  Maeris  vs,  Bicknell,  7  Cal.  261  ;  Cal.  33;  Kidd  vs.  Laird,  15  Cal.  162; 
10  Cal.  217;  Crandall  vs.  Woods,  8  McKiiniey  vs.  Smith,  21  Cal.  3.S1; 
Cal.    136;    Ortniaii    vs.    Dixon.    13       Phoenix    Water   Co.  vs.   FU-tcher. 


16-J:  ARID    REGION    DOCTRINE.  [§  107 

§  107.  Same.— Bear  lliver,  etc.  Water  Co.  vs.  New  York 

Milling  Co. — Another  early  decision  of  the  Supreme  Court  of 
California  in  which  this  question  was  even  more  thoroughly- 
discussed  was  that  of  The  Bear  River  and  Auburn  Water  and 
Mining  Co.  vs.  The  New  York  Mining  Company,  decided  in 
1857,^  in  which  Mr.  Justice  Burnett  said:  "  It  may  be  said, 
with  truth,  that  the  judiciary  of  this  State  has  had  thrown 
upon  it  responsibilities  not  incurred  by  the  Courts  of  any 
other  State  in  the  Union.  In  addition  to  those  perplexing 
cases  that  must  arise  in  the  nature  of  things,  and  especially  in 
putting  into  practical  operation  a  new  constitution  and  a  new 
code  of  statutes,  we  have  had  a  large  class  of  cases  unknown 
in  the  jurisprudence  of  our  sister  States.  The  mining  interest 
of  the  State  has  grown  up  under  the  force  of  new  and  extra- 
ordinary circumstances,  and  in  the  absence  of  any  specific  and 
certain  legislation  to  guide  us.  Left  without  any  direct  pre- 
cedent, as  well  as  without  specific  legislation,  we  have  been 
compelled  to  apply  to  this  anomalous  state  of  things  the  anal- 
ogies of  the  common  law  and  the  more  expanded  principles  of 
equitable  justice.  There  being  no  known  system  existing  at 
the  beginning,  parties  were  left  without  any  certain  guide, 
and  for  that  reason  have  placed  themselves  in  such  conflicting 
positions  that  it  is  impossible  to  render  anj^  decision  that  will 
not  produce  great  injury,  not  only  to  the  parties  immediately 
connected  with  the  suit,  but  to  large  bodies  of  men  who, 
though  no  formal  parties  to  the  record,  must  be  deeply  affec- 
ted by  the  decision.  No  class  of  cases  can  arise  more  difficult 
of  a  just  solution  or  more  distressing  in  practical  result.  And 
the  present  is  one  of  the  most  difficult  of  that  most  perplexing 
class  of  cases. 

"The  business  of   gold-mining    was  not  onlj^  new  to  our 
people  and  the  cases  arising  from  it  new  to  our  Courts,  and 

23  Cal.  481;  Wixon  vs.  Bear  River  son,  61  Cal.  259;  Strait  vs.  Brown, 

etc.  Co.,  24  Cal.  367;  Hill  vs.  Smith  16  Nev.  317;  Lowdell  vs.  Simpson, 

27  Cal.  480;  Nevada  Co.  and  S.  C.  2   Nev.    274;    Ophir  S.  M.  Co.  vs. 

Co.  vs.  Kidd,   37  Cal.  282;   Parks  Carpenter,  4  Nev.  534;  Barnes  vs. 

Canal   Co.   vs.   Hoyt,   57   Cal.   44;  Sabron,  10  Nev.  217. 
Farley  vs.   Spring   Valley   Water  18  Cal.  327,  333. 

Co.,  58  Cal.  142;  Himes  vs.  John- 


§  107].  ARID    REGION    DOCTRINE.  165 

without  judicial  or  legislative  precedent  either  in  our  own 
country  or  in  that  country  from  which  we  have  borrowed  our 
jurisprudence,  but  there  are  intrinsic  difficulties  in  the  subject 
itself  that  it  is  almost  impossible  to  settle  satisfactorily,  even 
by  the  application  to  them  of  the  abstract  principles  of  justice. 
Yet  we  are  compelled  to  decide  these  cases,  because  they  must 
be  settled  in  some  way,  whether  we  can  say  after  it  is  done 
that  we  have  given  a  just  decision  or  not. 

"The  use  of  water  for  domestic  purposes  and  for  the  water- 
ing of  stock  are  preferred  uses,  because  essential  to  sustain 
life.  Other  uses  must  be  subordinate  to  these.  In  such  cases 
the  element  is  entirely  consumed.  Next  to  these  may  prop- 
erly be  placed  the  use  of  water  for  irrigation  in  dry  and  arid 
countries.  In  such  cases  the  element  is  almost  entirely  con- 
sumed. Under  a  proper  system  of  irrigation  onl}-  so  much 
water  is  taken  from  the  stream  as  may  be  needed,  and  the 
whole  is  absorbed  or  evaporated.  Entire  absorption  is  the 
contemplated  result  of  irrigation.  When  properly  used  as  a 
motive  power  for  propelling  machinery  the  element  is  not  in- 
jured, because  the  slight  evaporation  occasioned  b}'  the  use  is 
unavoidable  and  is  not  esteemed  by  law  a  substantial  injury. 
Any  number  of  riparian  proprietors  can  use  the  water  as  a 
motive  power  in  succession,  without  substantial  injury  to  any 
other,  for  the  element  is  just  as  good  for  the  purpose  of  the 
last  as  for  those  of  the  first  proprietor. 

"Considering  the  different  uses  to  which  water  is  applied 
in  countries  governed  b}'  the  common  law,  it  is  not  so  diffi- 
cult to  understand  the  principles  that  regulate  the  relative 
rights  of  the  different  riparian  proprietors.  As  to  the  pre- 
ferred uses,  each  proprietor  had  the  right  to  consume  what 
was  necessary,  and  after  doing  this  he  was  bound  to  let  the 
remaining  portion  flow,  without  material  interruption  or  de- 
terioration, in  the  natural  channel  of  the  stream,  to  others 
below  him.  If  the  volume  of  water  was  not  sufficient  for  all, 
then  those  highest  up  the  stream  were  supplied  in  preference 
to  those  below.  So  far  as  the  preferred  uses  were  concerned, 
no  one  was  allowed  to  deteriorate  the  qualit}'  of  the  water. 
And  for  the  purposes  of  a  motive  j^ower  there  was  no  use  of 
the  element  that  could  impair  its  quality. 


166  .  ARID    REGION    DOCTRINE.  [§  107,  108 

"But  in  our  mineral  region  we  have  a  novel  use  of  water, 
that  can  not  be  classed  with  the  preferred  uses;  but  still  a  use 
that  deteriorates  the  quality  of  the  element  itself  when  wanted 
a  second  time  for  the  same  purposes.  In  cases  heretofore 
known,  either  the  element  was  entirely  consumed  or  else  its 
use  did  not  impair  its  quality  when  wanted  again  for  the  same 
purpose.  And  this  fact  constitutes  the  great  difficulty  in  this 
and  other  like  cases.  If  the  use  of  water  for  mining  purposes 
did  not  deteriorate  the  quality  of  the  element  itself,  then  the 
only  injury  that  could  be  complained  of  would  be  the  dimi- 
nution in  the  quantitj^  and  the  interruption  in  the  flow.  It  is 
this  novel  use  of  water,  and  its  effects  upon  the  fluid  itself, 
that  constitutes  the  main  difficulty  in  this  case.  In  repeated  de- 
cisions of  this  Court  it  has  been  uniformly  held  that  the  miners 
were  in  the  possession  of  the  mineral  lands,  under  a  license 
from  both  the  State  and  Federal  Government.  This  being 
conceded,  the  superior  proprietor  must  have  had  some  lead- 
ing object  in  view  when  granting  this  license;  and  that  object 
must  have  been  the  working  of  these  mineral  lands  to  the  best 
advantage.  The  intention  was  to  distribute  the  bount}^  of  the 
Government  among  the  greatest  number  of  persons,  so  as  most 
rapidly  to  develop  the  hidden  resources  of  this  region;  while 
at  the  same  time  the  prior  substantial  rights  of  individuals 
should  be  preserved.  In  the  working  of  these  mines  water  is 
an  essential  element;  therefore,  that  system  which  wull  make 
the  most  of  its  use  without  violating  the  rights  of  individuals 
will  be  most  in  harmony  with  the  end  contemplated  by  the 
superior  proprietor." 

§  108.  Same. — Clougli  vs.  Wing. — In  a  more  recent  case, 
Clough  vs.  Wing,  decided  by  the  Supreme  Court  of  the  Terri- 
tory of  Arizona,^  which  Territory  is  within  the  very  heart  of 
the  arid  region,  after  referring  to  several  cases  holding  against 
the  applicabilit}"  of  the  common  law  doctrine  in  the  arid  reg- 
ion, the  Court  said:  "These  cases  state  a  doctrine  very  dif- 
ferent from  the  common  law.  *  *  *  That  law  gave  to  the 
servient  and  dominant  heritage  the  right  to  the  natural  flow 
of  the  water.     The  riparian  owner  might  use  the  water  in  its 

1 17  Pac.  Rep.  455. 


§  108,   L09.]  ARID    REGION    DOCTRINE.  167 

course  to  turn  his  water-wheel  or  for  other  purposes,  but  was 
required  to  restore  the  same  to  its  natural  course.  While  he 
might  not  hinder  the  flow  so  as  to  injure  those  below  him,  he 
might  depasture  his  domestic  animals  so  as  to  drink  therefrom, 
and  take  water  for  domestic  uses.  He  might  not  drain  his 
land  so  as  to  increase  the  flood,  to  injure  those  below,  or  dam 
the  water  back  upon  the  lands  above  him.^  The  problem  there 
to  be  solved  was  how  best  to  drain  the  water  oflF  the  land  and 
get  rid  of  it,  not  how  to  save  it,  to  be  conducted  on  the  land  in 
the  aid  of  the  husbandman.  The  latter  has  been  the  problem 
in  the  arid  portions  of  the  earth.  From  'time  whereof  the 
memory  of  man  runneth  not  to  the  contrary'  the  rights  of  ri- 
parian owners  were  settled  in  the  common  law." 

§  109.  Decisions  on  Principle  Based  Upon  Doctrine  of 
Presnniption. — In  view  of  the  fact  that  previous  to  the  year 
1 866,  the  date  of  the  first  act  of  Congress  upon  the  subject, 
this  new  doctrine  of  prior  appropriation  could  be  based  upon 
no  grant,  statute,  or  express  permission  from  the  Federal 
Government  directly  authorizing  the  right  of  exclusive  appro- 
priation of  water  upon  the  public  domain,  and  from  the  fact 
that  the  legislature  of  the  State  of  California  passed  the 
following  act,  "The  common  law  of  England  so  far  as  it  is 
not  repugnant  to  or  inconsistent  with  the  Constitution  of  the 
United  States  or  the  Constitution  or  the  laws  of  the  State  of 
California  shall  be  the  rule  of  the  decisions  of  all  the  Courts 
of  this    State,"  it  seems   strange   that   the   early   California 

1  Citinj?,  I  Inst.  4;  2  Rla.  Comm.  Co.,  9  N.  W.  Rep.  379;  Ry.  Co.  vs. 

18;  Angell  on  Water-courses,  8;  3  Dyche,  i  Pac.  Rep.  243;  Red  River 

Kent  Comm.  361;  Elliot  vs.  Fitch-  Co.  vs.  Wright,  15  N.  W.  Rep,  167; 

burg  Ry.  Co.,  10  Cush.  193;  Right  Creighton    vs.     Irrigation    Co.,  7 

vs.   Howard,    i    Sim.   &  Stu.  190;  Pac.   Rep.   658;    Moore   vs.   Clear 

Lux  vs.  Haggin,  4   Pac.  Rep.  919:  Lake  Co.,  5  Pac.  Rep.  494;  Wilcox 

Weiss  vs.  Steel  Co.,  11   Pac.  Rep.  vs.  Hausch,  3  Pac.  Rep.  108;  Lar- 

255;    Hill  V.S.  Lenormand,  16  Pac.  rimer  Co.  vs.  People,  9  Pac.  Rep. 

Rep.  266;  Ware  vs.  Allen,  5  N.  E.  794;  Garwood  vs.  Railway  Co.,  S3 

Rep.  629;  Mason  vs.  Cotton,  4  Fed.  N.  Y.    400;    Ry.    Co.  vs.    Miller,  3 

Rep.  792;  Dumont  vs.  Kellogg,  29  Atl.  Rep.  780;  Totel  vs.  Bonuefoy, 

Mich.  420;  Jones  vs.  Adams,  6  Pac.  14  N.  E.  Re]).  687;  Peck  vs.  Her- 

Rep.  442;  Pyle  vs.  Richards,  22  N.  ringlon,  109  111.  611. 
\\^  Rep.  370;  Van  Orsdale  vs.  Ry. 


168  ARID   REGION    DOCTRINE.  [§  109 

decisions  respecting  water  rights,  which  are  directly  opposed 
to  the  common  law  rules  respecting  the  same,  as  universally 
understood  and  expounded  by  the  Courts  of  England  and  of  the 
United  States,  should  be  based  upon  "  one  favorite  and  much 
indulged  doctrine  ' '  of  the  common  law  itself — the  doctrine  of 
presumption.  Yet,  in  spite  of  the  seeming  inconsistency, 
such  is  the  fact.  Pomeroy  in  his  work  on  Riparian  Rights 
seems  to  give  the  true  explanation,  that  it  was  "  in  order  to 
protect  the  vast  interests  which  had  grown  up  under  the 
mining  systems,  and  to  give  legal  sanction  to  the  rights  thus 
acquired."^ 

' '  Presumptions  of  fact  are  inferences  as  to  the  existence  of 
some  fact  drawn  from  the  existence  of  some  other  fact."^ 
So  the  existence  of  the  open  and  notorious  fact  that  certain 
waters  of  streams  and  lakes  located  upon  the  public  domain 
of  the  United  States  had  been  appropriated  by  private  parties 
for  mining,  agriculture,  and  various  other  purposes;  and  that 
enormous  expenditures  of  mone}'  had  been  made  in  building 
up  vast  interests  in  conducting  the  water  to  places  where  it 
was  needed;  also  that  in  face  ot  these  open  and  notorious 
facts  the  Government  of  the  United  States,  the  proprietor  of 
these  lands  and  waters,  had  not  attempted  to  assert  an}-  right 
of  ownership  in  them,  and  that  the  State  government  of  Cali- 
fornia had  not  only  looked  approvingly  upon  this  universal 
appropriation  of  said  lands  and  waters,  but  had  in  some 
instances  encouraged  them,  it  was  therefore  presumed  that 
the  prior  appropriators  had  a  better  right  than  subsequent 
patentees  of  the  government  posterior  to  July  26th,  iS66» 
who  entered  their  lands,  prior  to  that  act,  but  had  not  per- 
fected title  until  after,  on  the  theory  that  the  appropriation 
was  allowed  or  licensed  by  the  United  States,  the  owner. -^ 

1  Pomeroj-  Rip.  Rights,  Sec.  22.  3  See   Lux   vs.    Haggin,    69   Cal. 

SRouvier  Law  Die.  sub.  Presump-  255;  10  Pac.  Rep.  721;  Conger  vs. 

tion;   I  Phillips  on  Ev.  156;    Rex  Weaver,  6  Cal.  556;  Fitzgerald  vs. 

vs.  Burdett,  4  B.  &  Aid.  161;  Pat-  Urton,  5  Cal.  309. 

tershall    vs.    Turford,   3    B.  &  Ad.  But   see  '  the    case  of    Boggs   vs. 

890;    23  Eng.  C.  L.  212;    Eldridge  Merced   Mining   Co.,   14   Cal.  355, 

vs.  Knott,  Cowper  215;  Good  Title  374,  where  Mr.  Chief  Justice  Field 

vs.  Baldwin,  11  East  4SS.  said   in   rendering  the  opinion  of 


§  109,  110.] 


ARID    REGION    DOCTRINE. 


169 


The  supposed  license  consisted  simply  in  the  forbearance 
of  the  government  from  interfering  or  prohibiting  these  appro- 
priations, there  never  being  an}-  license  in  fact  from  the  gov- 
ernment nntil  the  act  of  Congress  of  July  26th,  1866.^ 

§  110.  Same — Coutiiiued — Conger  vs.  Weaver. — It  will  not 
do  to  leave  this  discussion  with  but  a  passing  notice  of  Conger 
vs.  Weaver, 2  where  the  question  was  discussed  with  great 
ability  by  a  learned  judge  as  early  as  the  year  1856.  Mr. 
Justice  HcN'denfeldt,  in  delivering  the  opinion  of  the  Court, 
said:  "That  new  conditions  and  new  facts  may  produce  the 
novel  application  of  a  rule  which  has  not  been  before  applied, 
in  like  manner,  does  not  make  it  any  less  the  common  law; 


the  Court:  "Assuming,  then,  in 
the  first  place,  for  the  purpose  of 
this  case,  that  the  mineral  belongs 
to  the  United  States — has  the  de- 
fendant any  effectual  license  to 
enter  upon  the  premises  of  the 
plaintiff  and  remove  it.  It  is  some- 
times said,  in  speaking  of  the  pub- 
lic lands,  that  there  is  a  general 
license  from  the  United  States  to 
work  the  mines  which  these  lands 
contain.  But  this  language,  though 
it  has  found  its  way  into  some 
judicial  decisions,  is  inaccurate  as 
applied  to  the  action,  or,  rather 
want  of  action,  of  the  government. 
There  is  no  license  in  the  legal 
meaning  of  the  term.  A  license 
to  work  the  mines  implies  a  per- 
mission to  extract  and  remove  the 
mineral.  Such  license  from  an 
individual  owner  can  be  created 
only  by  writing,  and  from  the 
general  government  only  l^y  Act 
of  Congress.  It  carries  an  interest 
in  land,  and  arises  only  from  grant. 
The  mineral,  whether  a  distinct 
possession  or  otherwise,  consti- 
tutes part  of  tlie  realty,  as  much 
so  as  growing  timber,  and  no  in- 
terest in  it  can  pass  except  in  the 


ordinary  modes  for  the  disposition 
of  land.  It  is  under  the  exclusive 
control  of  Congress  equally  with 
any  other  interest  which  the  gov- 
ernment possesses  in  land.  But 
Congress  has  adopted  no  specific 
action  on  the  subject,  and  has  left 
the  matter  to  be  controlled  by  its 
previous  general  legislation  re- 
specting the  public  domain.  And 
it  is  from  its  want  of  specific  action 
from  its  passiveness,  that  the  in- 
ference is  drawn  of  a  general 
license.  The  most  which  can  be 
said  is  that  the  government  has 
forborne  to  exercise  its  rights,  but 
this  forbearance  confers  no  posi- 
tive right  upon  the  miner  which 
would  avail  as  a  protection  against 
the  assertion  of  its  claims  to  the 
mineral.  The  supposed  license 
from  the  general  government, 
then,  to  work  the  mines  in  the 
pul)lic  lands,  consists  in  its  simple 
forbearance.  Any  other  license 
rests  in  mere  assertion,  and  is  un- 
true in  fad  and  unwarranted  in 
law." 

'  Ibid;  Tojueroy  on  Rii).  Rights, 
Sec.  23. 

2  6  Cal.  54«,  556. 


IVO  ARID    REGION    DOCTRINE.  [§  110 

for  the  latter  is  a  system  of  grand  principles,  founded  upon 
the  nature  and  perfected  reason  of  centuries.  It  would  have 
but  little  claim  to  the  admiration  to  which  it  is  entitled,  if  it 
failed  to  adapt  itself  to  any  condition,  however  new,  which 
may  arise;  and  it  would  be  singularly  lame  if  it  is  impotent 
to  determine  the  rights  of  any  dispute  whatsoever.  Having, 
as  far  as  we  have  gone,  met  all  difficulties  by  adhering  to  its 
doctrines,  we  have  no  ground  to  presume  that  we  will  have  to 
go  beyond  its  precincts  for  a  solution  of  any  which  may  arise. 
One  of  the  favorite  and  much  indulged  doctrines  of  the  com- 
mon law,  is  the  doctrine  of  presumption.  Thus,  for  the  pur- 
pose of  settling  men's  differences,  a  presumption  is  often 
indulged,  where  the  fact  presumed  can  not  have  existed." 
After  citing  several  authorities  upon  the  subject,  he  continued: 
"In  these  cases  presumptions  were  indulged  against  the 
truth — presumptions  of  Acts  of  Parliament  and  grants  from 
the  Crown.  It  is  true,  the  basis  of  the  presumption  was 
length  of  time,  but  the  reason  of  it  was  to  settle  the  dispute 
and  to  quiet  the  possession.  If,  then,  lapse  of  time  requires 
a  Court  to  raise  presumptions,  other  circumstances,  which  are 
equally  potent  and  persuasive,  must  have  the  like  effect  for 
the  purposes  of  the  desired  end;  for  lapse  of  time  is  but  a 
circumstance,  or  fact,  which  calls  out  the  principle  and  is  not 
the  principle  itself. 

"Every  judge  is  bound  to  know  the  history  and  the  leading 
traits  which  enter  into  the  history  of  the  country  where  he 
presides.  This  we  have  held  before,  and  it  is  also  an  admitted 
doctrine  of  the  common  law.  We  must,  therefore,  know  that 
this  State  has  a  large  territory;  that  upon  its  acquisition  by 
the  United  States,  from  the  sparseness  of  its  population,  but 
a  small  comparative  proportion  of  its  land  had  been  granted 
to  private  individuals;  that  the  great  bulk  of  it  was  land  of 
the  Government;  that  but  little,  as  yet,  had  been  acquired  by 
individuals  b}^  purchase;  that  our  citizens  have  gone  upon 
the  public  lands  continuously,  from  a  period  anterior  to  the 
organization  of  the  State  Government  to  the  present  time; 
upon  these  lands  thej^  have  dug  for  gold;  excavated  mineral 
rock;  constructed  ditches,  flumes  and  canals  for  conducting 
water;    built   mills    for   sawing   lumber   and   grinding   corn; 


§  110,  111.]  ARID    REOIOX    DOCTKIXE.  171 

established  farms  for  cultivating  the  earth;  made  settlements 
for  the  grazing  of  cattle;  laid  off  towns  and  villages;  felled 
trees,  diverted  water- courses;  and,  indeed,  have  done,  in 
various  enterprises  of  life,  all  that  is  usual  and  necessary  in  a 
high  condition  of  civilized  development.  All  of  these  are 
open  and  notorious  facts,  charging  with  notice  of  them  not 
only  the  Courts  who  have  to  apply  the  law  in  reference  to 
them,  but  also  the  Government  of  the  United  States,  which 
claims  to  be  the  proprietor  of  these  lands;  and  the  Government 
of  the  State,  within  whose  sovereign  jurisdiction  they  exist. 
In  the  face  of  these  notorious  facts,  the  Government  of  the 
United  States  has  not  attempted  to  assert  an}'  right  of  owner- 
ship to  any  of  the  large  body  of  land  within  the  mineral 
region  of  the  State.  The  State  government  has  not  only 
looked  on  quiescently  upon  this  universal  appropriation  of  the 
public  domain  for  all  of  these  purposes,  but  has  studiously 
encouraged  them  in  some  instances,  and  recognized  them  in 
all.  Now,  can  it  be  said  with  an}' propriet}'  of  reason  or  com- 
mon sense,  that  the  parties  to  these  acts  have  acquired  no 
rights?  If  they  have  acquired  rights,  these  rights  rest  upon 
the  doctrine  of  presumption  of  a  grant  of  right,  arising 
either  from  the  tacit  assent  of  the  sovereign,  or  from  the 
expressions  of  her  will  in  the  course  of  her  general  legislation, 
and,  indeed,  from  both.  Possession  gives  title  only  by  pre- 
sumption; then,  when  the  possession  is  shown  to  be  of  public 
land,  why  may  not  any  one  oust  the  possessor  ?  Why  can 
the  latter  protect  his  possession  ?  Only  upon  the  doctrine  of 
presumption,  for  a  license  to  occupy  from  the  owner  will  be 
presumed."  ^ 

§  111.  Appropriation  as  Apiinst  the  United  States. — The 

United  States  being  the  owner  of  the  public  domain,  and,  of 
course,  as  incident  thereto  the  waters  thereon,  an  appropriator 
of  those  waters  prior  to  the  year  1866  has  been  held  not  to  have 
acquired  any  legal  title  to  the  same  as  against  the  Federal 
Government  or  its  grantee;  although  it  has  also  been  held  that 
the  appropriator  had,  prior  to  the  act  of  Congress,  acquired  an 

•Hicks  vs.   Bell,  3  Cal.  219;    Ir.       vs.   Natoiiui  Water  Co.,  loi   U.   S. 
win  vs.  Phillips,  5  Cal.  140;  Broder       276. 


172  ARID    REGION    DOCTRINE.  [§  111,  112 

equitable  title  to  the  water  appropriated. ^  It  has  never  been 
held  by  the  Supreme  Court  of  the  United  States,  or  by  the  Su- 
preme Court  of  California,  that  an  appropriation  of  water  on 
the  public  lands  of  the  United  States  after  the  act  of  Congress 
of  July  26th,  1 866,  or  the  amendator}-  and  declaratory  act  of 
1870,  gave  to  the  appropriator  the  right  to  the  water  appro- 
priated as  against  the  grantee  of  riparian  lands  upon  the  same 
stream  under  a  grant  made  or  issued  prior  to  the  act  of  1866, 
except  in  a  case  where  the  water,  so  subsequently  appropriated, 
was  reserved  by  the  special  terms  of  such  grant.  And  it  has 
been  held  by  the  Supreme  Courts  of  California  and  Nevada 
that  one  who  acquired  a  title  to  riparian  lands  from  the  United 
States  prior  to  the  act  of  Congress  of  July  26th,  1866,  could 
not,  in  the  absence  of  special  reservation  in  his  grant,  be  de- 
prived of  his  common  law  rights  to  the  natural  flow  of  the 
stream  as  it  was  wont  by  one  who  had  appropriated  its  waters 
after  the  passage  of  that  act.  In  other  words  the  courts  of 
California  have  repeatedly  held  that  the  common  law  doctrine 
was  in  force  in  that  State  and  entitled  to  protection.^ 

§  112.  Appropriation  Prior  to  Patent  Issned  Before  Act 
of  1866. — But  the  Courts  of  California  and  Nevada  have  gone 
even  further  than  the  above.  In  the  case  of  Lux  vs.  Haggin, 
supra,  decided  b}'  the  Supreme  Court  of  California,  Mr.  Jus- 
tice McKinstr}^,^  in  giving  the  opinion  of  the  Court  relative  to 
the  principle  that  a  patent  issued  prior  to  the  act  of  Congress 
of  July  26th,  1 866,  for  riparian  lands  upon  a  stream  was  not 
subject  to  an  appropriation  of  the  waters  of  the  same  stream 
made  prior  to  the  issuance  of  the  patent,  referred  approvingly 
to  the  rule  as  laid  down  b}^  the  Supreme  Court  of  Nevada  in 
the  case  of  Vansickle  vs.  Haines,^  and  said:  "  In  Vansickle 
vs.  Haines,  the  plaintiff  had  diverted  one-fourth  of  the  water  of 
Daggett  Creek  in  the  year  1857.     He  made  the  diversion  on  a 

1  See  post  Chapt.  VII.  Sees.  192,  10  Pac.  Rep.  724;  Civil  Code  of  Cali- 

206:  Jones  vs.  Adams,   19  Nev.  78;  fornia,  Sec.     1422;    Vansickle    vs. 

6  Pac.   Rep.   442;    Broder   vs.  Na-  Haines,  7  Nev.  249. 

toma  Water  &  M.  Co.,    loi  U.  S.  =^69  Cal.  255. 

274.  ^7  Nev.  249,  overruled  in  Jones 

^Osgood  vs.  Water  Co.,  56    Cal.  vs.  Adams,  19  Nev.  78;  6  Pac.  Rep. 

571;  Lux   vs.  Haggin,  69  Cal.  255;  242. 


§  112].  ARID    REGION    DOCTRINE.  173 

point  then  on  the  public  land,  but  which  in  1864  was  patented 
by  the  United  States  to  the  defendant  Haines.  In  1865  Van- 
sickle  obtained  a  patent  for  his  own  land  where  he  used  the 
water.  In  1 867  Haines  contructed  a  wood  flume  on  his  land 
and  turned  into  it  all  of  the  waters  of  the  stream,  thereby  depriv- 
ing the  plaintiflFof  that  part  of  it  which  he  had  been  using.  The 
Supreme  Court  of  Nevada  held  that  the  plaintiff  by  his  appro- 
priation of  water /r/cr  to  the  date  of  the  defendant V  patent 
acquired  no  right  which  could  affect  that  grant,  and  that 
while  the  act  of  Congress  of  July,  1866,  protected  those  who  at 
that  time  were  diverting  water  from  its  natural  channels  on 
the  public  lands;  and  while  all  patents  issued  or  titles  acquired 
from  the  United  States  since  that  date  are  obtained  subject 
to  the  rights  of  water  by  appropriation  existing  at  that  time 
yet  with  respect  to  patents  for  riparian  lands  issued  before  the 
act  of  Co7igress  the  patentee  had  already  acquired  the  right  to 
the  flow  of  the  water,  with  which  Congress  could  not  inter- 
fere." In  other  words  the  decision  held  that  any  one  claim- 
ing the  water  of  a  stream  which  was  upon  the  public  domain 
simply  by  the  appropriation  of  the  same,  no  matter  how  bene- 
ficial or  necessary  the  use  to  which  it  was  applied,  acquired 
no  vested  right  as  against  the  Government  or  its  grantees,  un- 
less he  still  continued  to  appropriate  the  water  to  his  own  use 
until  after  the  act  of  Congress  of  1866  without  the  water  being 
claimed  by  some  riparian  owner  who  had  received  his  patent 
to  the  \2Ln& prior  to  said  act.  But  in  reference  to  other  appro- 
priators  and  grantees  of  the  Government  who  received  their 
patents  after  the  said  act  of  Congress  of  1866  the  first  appro- 
priator's  title  to  the  water  was  good.  And  it  was  further  held 
that  those  who  had  appropriated  the  waters  on  the  public 
lands  prior  to  the  act  of  1866  were  not  treated  by  the  Govern- 
ment as  trespassers,  but  as  thereby  licensed;  but  that  they 
had  acquired  no  title  which  could  be  asserted  against  the 
United  States  or  its  grantees.^  This,  as  can  be  readily  seen, 
was  a  very  uncertain  state  of  affairs  for  the  parties  whose  title 
to  waters  depended  solely  upon  the  prior  appropriation  of  the 

1  See  also  Union  ?klill  Co.  vs.  I"er-        Dangberj.(,   2  Saw.  450;  Could  on 
ris,  2  Saw.  176;  Union  Mill  Co.  vs.       Waters,  Sec.  240,  and  cases  cited. 


174  ARID    REGION    DOCTRINE.  [§  112,  113 

same,  as  it  was  not  known  when  a  grantee  of  the  Government 
or  the  Government  itself  might  step  in  and  claim  all  the 
waters  of  the  streams  upon  the  public  domain,  to  the  great 
loss  to  those  who  had  made  the  appropriations.  But  we  shall 
see  in  our  next  section  that  relief  soon  came  by  the  celebrated 
act  of  Congress  of  July  26th,  1866,  referred  to  above. ^ 

§  113.  The  Act  of  Congress  of  July  26tli,  1S6G.— As  we 

have  seen,  the  government  had  by  its  conduct  recognized  the 
rights  of  persons  who  had  appropriated  the  water  of  the  streams 
and  lakes  on  the  public  domain,  and  who  had  constructed 
canals  and  ditches  to  facilitate  its  use  in  mining  operations 
and  for  the  purpose  of  agriculture  in  the  region  where  such 
artificial  use  of  the  water  was  a  necessity.  It  is  further  true 
that  before  any  act  of  Congress  was  passed  sanctioning  those 
claims  of  the  miners,  this  doctrine  of  prior  appropriation, 
which  at  first  applied  onl}^  to  the  operations  of  mining,  was  ex- 
tended to  all  other  beneficial  purposes  for  which  water  was 
essential — to  irrigation,  in  promoting  agriculture  and  horti- 
culture, to  milling,  manufacturing  and  municipal  purposes — 
which  uses  were  also  recognized  and  encouraged  by  the  gov- 
ernment as  being  equal. ^  On  the  26th  day  of  July,  1866,  Con- 
gress passed  an  act  which  confirmed  this  view,  and  formally  rec- 
ognized this  new  doctrine  of  prior  appropriation,  which  has 
been  held  by  the  United  States  Supreme  Court  to  be  "rather 
a  voluntary  recognition  of  a  pre-existing  right  of  possession, 
constituting  a  valid  claim  to  its  continued  use  than  the  estab- 
lishment of  a  new  one."-"^  The  ninth  section  of  that  act  reads 
as  follows:  "Whenever,  by  priority  of  possession,  rights  to 
the  use  of  water  for  mining,  agricultural,  manufacturing  or 
other  purposes,  have  vested  and  accrued,  and  the  same  are 
recognized  and  acknowledged  by  the  local  customs,  laws  and 
decisions  of  courts,  the  possessors  and  owners  of  such  vested 
rights  shall  be  maintained  and  protected  in  the  same;  and  the 

iSee  discussion  upon   this  sub-  3  Atchison  vs.  Peterson,  20  Wall, 

ject,    post    Chapter  VII,    Section  507;  Basey  vs.  Gallagher,  20  Wall. 

192-206.  620;  Forbes  vs.Gracey,  94  U.  S.  762; 

2  See      Pomeroy      on     Riparian  Jennison  vs.  Kirk,    98   U.  S.   453; 

Rights    Sec.    15,    note   and   cases  Broder   vs.  Natoma   Water  &   M. 

cited.  Co.,  loi  U.  S.  274. 


§  113,  111.]  ARID    REGION   DOCTRINE.  175 

right  of  way  for  the  construction  of  ditches  and  canals  for  the 
purposes  herein  specified  is  acknowledged  and  confirmed;  but 
whenever  any  person,  in  the  construction  of  any  ditch  or 
canal,  injures  or  damages  the  possession  of  any  settler  on  the 
public  domain,  the  party  committing  such  injury  shall  be 
liable  to  the  party  injured  for  such  injury  or  damage."^ 

Thus  this  act  of  Congress,  whilst  acknowledging  the  general 
wisdom  of  the  customs  and  regulations  of  the  miners,  as  sanc- 
tioned by  the  State  of  California  and  moulded  by  its  Courts, 
secured  these  rights  to  water,  and  rights  of  way  over  public 
lands  to  convey  the  water  where  it  was  needed,  to  the  parties 
who  had  prior  to  the  Act  made  the  appropriation.  And  this 
Act  of  Congress  prevented  the  destruction  of  these  rights  by 
making  all  subsequent  patentees  acquiring  lands  from  the 
United  States  take  those  lands  subject  to  all  "  vested  and  ac- 
crued "  rights  in  and  to  the  waters  of  the  public  domain  ap- 
propriated by  other  parties  prior  to  its  enactment. 

§  114.  Same— Coutinued— Cause  of  Passage  of  Act.— In 
commenting  upon  the  cause  of  the  passage  of  this  Act  of  Con- 
gress, Mr.  Justice  Field  of  the  Supreme  Court  of  the  United 
States,  in  rendering  the  opinion  of  that  Court  in  the  case  of 
Jennison  vs.  Kirk,^  said:  "  The  doctrines  of  the  common  law 
respecting  the  rights  of  riparian  owners  were  not  considered  as 
applicable,  or  only  in  a  very  limited  degree,  to  the  condition 
of  the  miners  in  the  mountains.  The  waters  of  rivers  and 
lakes  were  consequently  carried  great  distances  in  ditches  and 
flumes,  constructed  with  vast  labor  and  enormous  expendi- 
tures of  money,  along  the  sides  of  mountains  and  through 
canyons  and  ravines,  to  supply  communities  engaged  in  min- 
ing, as  well  as  for  agriculturists  and  ordinary  consumption. 
Numerous  regulations  were  adopted,  or  assumed  to  exist,  from 
their  obvious  justice,  for  the  security  of  these  ditches  and  flumes 
and  the  protection  of  rights  to  water,  not  only  between  appro- 
priators,  but  between  them  and  the  holders  of  mining  claims. 
These  regulations  and  customs  were  appealed  to  in  contro- 
versies in  the  State  courts,  and  received  their  sanction;  and 
properties  to  the  value  of  many  millions  rested  upon  them, 
1  Revised  vStat.  U.  S.  2339.  -'^'^  U.  vS.  453. 


176  ARID    UEGIOX    DOCTRINE.  [§  114 

For  eighteen  years,  from  1848  to  1866,  the  regulations  and  cus- 
toms of  miners  as  enforced  and  moulded  by  the  courts  and 
sanctioned  by  the  legislation  of  the  State,  constituted  law  gov- 
erning propert}^  in  mines  and  in  water  on  the  public  mineral 
lands.  Until  1866,  no  legislation  was  had  looking  to  the  sale 
of  the  mineral  land.  The  policy  of  the  country  had  previ- 
ously been,  as  shown  by  the  legislation  of  Congress,  to  exempt 
such  land  from  sale.  In  that  year  the  Act,  the  ninth  section 
of  which  we  have  quoted,  was  passed.  In  the  first  section  it 
was  declared  that  the  mineral  lands  of  the  United  States  were 
free  and  open  to  exploration  and  occupation  by  the  citizens  of 
the  United  States,  and  those  who  had  declared  their  intention 
of  becoming  citizens,  subject  to  such  regulations  as  might  be 
prescribed  by  law  and  the  local  customs  or  rules  of  miners  in 
the  several  mining  districts,  so  far  as  the  same  were  not  in 
conflict  with  the  laws  of  the  United  States.  *  *  *  In  no 
provision  of  the  Act  was  any  intention  manifested  to  inter- 
fere with  the  possessory  rights  previously  acquired,  or  which 
might  be  afterwards  acquired;  the  intention  expressed  was  to 
secure  them  by  a  patent  from  the  government.  The  Senator 
of  Nevada,  Hon.  William  M.  Stewart,  the  author  of  the  Act, 
in  advocating  its  passage  in  the  Senate,  spoke  in  high  praise 
of  the  regulations  and  customs  of  miners,  and  portrayed  in 
glowing  language  the  wonderful  results  that  had  followed  the 
system  of  free  mining  which  had  prevailed  with  the  tacit  con- 
sent of  the  government.  The  Legislature  of  California,  he 
said,  had  wisely  declared  the  rules  and  regulations  of  miners 
should  be  received  in  evidence  in  all  controversies  respecting 
mining  claims,  and,  when  not  in  conflict  with  the  Constitu- 
tion or  laws  of  the  State  or  of  the  United  States,  should  gov- 
ern their  determination;  and  a  series  of  wise  judicial  decisions 
had  moulded  these  regulations  and  customs  into  'a  comprehen- 
sive system  of  common  law,  embracing  not  only  mining  law, 
properly  speaking,  but  also  regulating  the  use  of  water  for 
mining  purposes.'  'The  miner's  law,'  he  added,  'was  a  part  of 
the  miner's  nature.  He  had  made  it,  and  he  trusted  it  and 
obeyed  it.  He  had  given  the  honest  toil  of  his  life  to  dis- 
cover wealth,  which,  when  found,  was  protected  by  no  higher 


§  114,  115].  ARID    REGION    DOCTRINE.  177 

law  than  that  enacted  by  himself,  under  the  implied  sanction 
of  a  just  and  generous  government.  And  the  Act  proposed 
continued  the  system  of  free  mining,  holding  the  mineral  lands 
open  to  exploration  and  occupation,  subject  to  legislation  by 
Congress  and  to  local  rules.  It  merely  recognized  the  obli- 
gation of  the  government  to  respect  private  rights  which  had 
grown  up  under  its  tacit  consent  and  approval.  It  proposed 
no  new  system,  but  sanctioned,  regulated,  and  confirmed  a 
system  already  established,  to  which  the  people  were  already 
attached.'  These  statements  of  the  author  of  the  Act,  in  advo- 
cating its  adoption  cannot  of  course,  control  its  construction, 
where  there  is  doubt  as  to  its  meaning;  but  they  show  the 
condition  of  the  mining  property  on  the  public  lands  of  the 
United  States,  and  the  tenure  by  which  it  was  held  by  miners 
in  the  absence  of  legislation  on  the  subject;  and  thus  serve  to 
indicate  the  probable  intention  of  Congress  in  the  passage  of 
the  Act.  *  *  *  It  was  for  the  purpose  of  securing  rights  to 
water,  and  rights  of  way  over  the  public  lands  to  convey  it, 
tvhich  were  thus  recognized,  that  the  ninth  section  was 
adopted,  and  not  to  grant  rights  of  way  where  they  were  not 
previously  recognized  by  the  customary  law  of  miners.  "^ 

§  115.  Legaf  Effect  of  the  Act.— It  has  been  held  by  the 
Supreme  Court  of  the  United  States  in  a  number  of  cases  that 
this  section  of  the  act  of  Congress  of  i866  only  confirmed  to 
the  owners  of  water  rights  and  of  ditches  and  canals,  on  the 
public  lands  of  the  United  States,  the  same  rights  which  they 
held  under  the  local  customs,  laws  and  decisions  of  the  courts 
of  the  state  prior  to  its  passage;  and  that  it  was  "rather  a 
voluntary  recognition  of  a  pre-existing  right  of  possession, 
constituting  a  valid  claim  to  its  continued  use  than  the  estab- 
lishment of  a  new  one."^  The  effect  of  the  first  clause  of  the 
section  was  to  secure  the  protection  of  rights  to  the  use  of 
water  for  mining,  agriculture,  manufacturing,  or  other  bene- 
ficial purposes,  acquired  by  priority  of  possession,  when  recog- 

1  Cong.    Globe,    ist   vSess.    39th  Gallagher,  20  Wall.  670;  Forbes  vs. 

Cong.  Part  IV.  pages  3225-3228.  Gracey,  94  U.  S.  762;  Jennison  vs. 

2Broder  vs.  Natoma  Water  &  M.  Kirk,  98  U.  vS.  453;  vSturr  vs.  Beck, 

Co.,   loi  U.    S.   274;   Atchison  vs.  133  U.  S.  541. 
Peterson,  20  Wall.   507;   Basey  vs. 


178  ARID    REGION    DOCTRINE.  [§  115 

nized  by  the  local  customs,  laws  and  decisions  of  the  Courts; 
and  the  second  clause,  declaring  that  the  rights  of  way  for  the 
construction  of  ditches  and  canals  to  carry  water  for  those  pur- 
poses, "is  acknowledged  and  confirmed,"  was  not  held  by  the 
Supreme  Court  of  the  United  States  as  conferring  a  right  of 
way  independent  of  such  customary  law,  but  only  as  ac- 
knowledging and  confirming  such  right  as  the  law  gave.  Con- 
struing the  clause,  "But  whenever  any  person,  in  the  con- 
struction of  any  ditch  or  canal,  injures  or  damages  the  posses- 
sion of  any  settler  on  the  public  domain,  the  party  committing 
such  injury  or  damage  shall  be  liable  to  the  party  injured  for 
such  injury  or  damage,"  the  same  Court  has  held  that  this 
proviso  imposed  no  additional  liabilities  on  the  owners  of 
ditches  constructed  prior  to  the  Act;  but  simply  rendered  the 
owners  liable  to  parties  on  the  public  domain  whose  posses- 
sions might  be  injured  by  such  construction  of  ditches  after 
the  Act.  In  other  words,  Congress  therein  declared,  that 
whenever  rights  to  the  use  of  water  by  priority  of  possession 
had  become  vested  and  were  recognized  by  the  local  customs; 
laws  and  decisions  of  the  Courts  as  such,  the  owners  and  pos- 
sessors should  be  protected  in  them;  and  that  the  right  of  wa}'' 
for  ditches  and  canals  incident  and  necessary  »to  such  water 
rights,  for  the  purpose  of  conducting  the  water  to  the  places 
where  needed,  being  recognized  in  the  same  manner,  should 
also  be  protected.  But  where  ditches  which  were  constructed 
subsequent  to  the  passage  of  the  Act  injured  the  possessions 
of  others  on  the  public  domain,  the  owners  of  such  ditches 
should  be  liable  for  the  injuries  sustained.  No  other  con- 
struction can  be  consistent  with  the  general  purpose  of  the 
Act.  This  view  of  the  object  and  meaning  of  the  section  was 
adopted  at  an  early  day  by  the  Land  Department  of  the  Gov- 
ernment, and  the  subsequent  legislation  of  Congress  respect- 
ing the  waters  and  the  mineral  lands  upon  the  public  domain 
is  in  harmony  with  it.^ 


lL,etter   of   Commissioner   Wil-  i6  Stat,  at  L,.  217;  Act  of  Congress 

son,   of  Nov.  23rd,    1869;    Copp's  of   May    loth,  1872,  17   Stat,  at  L. 

Mining    Decisions     of   the   U.   S.  91;  the  United  States  caSes  cited 

21;  Acts  of  Congress  Jul}- 9th,  1S70,  above. 


§  116.]  ARID    REGIOX    DOCTRINE.  179 

§  116.  Same— Acts  of  Congress  of  July  9th,  1870.— Thus, 
as  we  have  seen,  in  following  the  history  of  the  doctrine,  the 
prior  appropriation  of  the  water  of  a  stream  or  lake  upon  the 
public  domain,  from  the  very  first,  after  the  discovery  of  gold 
in  California  in  1848,  secured  a  title  to  the  water  appropriated, 
which  was  then  considered  good  as  against  all  the  world 
except  the  United  States  Government.  And  furthermore,  the 
Government,  instead  of  den^dng  this  right  and  treating  it  as 
non-existing,  not  only  recognized  it  as  having  accrued  and 
vested  (by  its  forbearance  from  interfering  and  prohibiting 
these  open  and  notorious  acts  of  appropriation  of  water),  but 
also,  by  the  Statute  of  1866,  formally  acknowledged  the 
doctrine  and  made  the  national  ownership  of  the  public 
domain  bordering  on  a  stream  or  lake  subject  to  the  claims 
and  uses  of  the  prior  appropriators.  And  so,  the  Government 
having  disposed  of  the  waters  on  its  lands,  where  the  same 
had  been  actually  appropriated,  could  only  give  to  its 
patentees,  after  the  Act  of  1866,  a  title  to  the  riparian  lands 
subject  to  any  vested  and  accrued  water  rights  and  rights  of 
way  for  the  construction  of  ditches  and  canals.^  This  was  a 
consequence  which  naturally  followed  from  the  well  settled 
law  of  conveyancing.  And  although  there  was  no  reserva- 
tion clause  in  the  government  patents,  prior  to  those  issued 
after  the  Act  of  1870,  "  wherever  the  title  of  the  United  States 
to  any  portion  of  the  public  domain  was  thus  burdened  the 
same  burden  would  on  general  principles  accompany  the 
title,  if  transferred  to  any  subsequent  or  private  owner;  who- 
ever succeeded  to  the  title  of  the  United  States,  through  any 
mode  of  acquisition  or  conveyance,  would  acquire  and  hold  it, 
subject  to  the  same  servitude  which  before  existed  in  favor  of 
the  prior  appropriator."  -  But  it  has  not  been  left  as  a  matter 
of  inference.  By  an  Act  of  July  9th,  1870,  Congress  in 
amending  the  Statute  of  1866  provided:  "  All  patents  granted, 
or  pre-emption  or  homesteads  allowed,  shall  be  subject  to  any 

1  Pomeroy   on  Riparian    Rights,  Copp's fining  Dec,  1873,  1874. 

Sec.  16,   25;   Lux   vs.    Haggin,    69  '-2  Pom.  Rip.  Rights,  Sec.  25;  Os- 

Cal.  255;  10  Pac.  Rep.  724:  Osgood  good  vs.  Kl  Dorado  W.  Co.,  56  Cal. 

vs.  Water  Co.,    56   Cal.   671.     vScc  671. 


180  ARID    REGION    DOCTRINE.  [§  116-118 

vested  and  accrued  water  rights,  or  rights  to  ditches  and 
reservoirs  used  in  connection  with  such  water  rights,  as  may 
have  been  acquired  under  or  recognized  by  the  preceding 
section."^ 

§  117.  Same.— Construction  of  Act  of  1870.— All  patents 
which  were  issued  after  this  last  act  went  into  effect  contained 
the  following  reservation  clause: — -"  subject  to  any  vested  and 
accrued  water-rights  for  mining,  agricultural,  manufacturing 
or  other  purposes,  and  rights  to  ditches  and  reservoirs  used  in 
connection  with  such  water-rights  as  may  be  recognized  and 
acknowledged  by  the  local  customs,  laws  and  decisions  of 
Courts."  It  will  be  seen  that  this  clause  embodies  the  sub- 
stance of  the  9th  section  of  the  act  of  1866  and  the  portion 
quoted  from  that  of  1870,  which  later  act  has  been  construed 
to  be  amendatory  and  declaratory  only.'^  The  interpretation 
given  this  section  by  the  General  Land  Office  is  explained  in  the 
letter  of  Commissioner  Drummond,  dated  March  21st,  1872,^ 
in  which  he  said:  "  I  am  satisfied  that  rights  to  the  use  of 
water  for  mining,  manufacturing,  agricultural  or  other  pur- 
poses, and  rights  for  the  construction  of  ditches  and  canals 
used  in  connection  with  water  rights  are  fully  protected  by 
law;  yet,  in  order  that  all  misapprehension  that  might  exist 
between  the  holders  or  claimants  of  such  rights  and  such 
patentee  might  be  set  at  rest,  it  was  determined  in  all  patents 
hereafter  granted  in  mineral  regions  of  the  United  States  to 
insert  an  additional  clause  or  condition,  expressly  protecting 
and  reserving  such  water  rights,  and  making  the  patent  sub- 
ject thereto,  the  same  as  before  it  was  granted." 

§  118.  Acts  of  Congress  Svibsequent  to  1870.— The  general 
Government  has  still  further  sanctioned  this  doctrine  con- 
cerning the  appropriation  and  use  of  water  in  the  arid  west, 

iSee  Revised  Statutes  of  U.  S.  which  is  one  passed  to  put  an  end 

Sec.  2340.  to  a  doubt  as  to  what  the  law  is, 

2  See  previous  section  ii6;  Bou-  and  which  declares  what  it  is  and 

vier,subject  "Declaratory.'' Some-  what  it  has  been,     i  Bla.  Com.  86. 

thing  which  explains  or  ascertains  3  Copp's  U.  S.  Mineral  Lands  2nd 

what    before    was     uncertain     or  Ed.  p.  84. 
doubtful;  as,  a  declaratory  statute, 


§  118].  ARID    REGION    DOCTRINE.  181 

by  several  recent  enactments.  On  March  3rd,  1877,  Congress 
passed  "An  Act  to  provide  for  the  sale  of  Desert  lyands  in 
certain  States  and  Territories,"  which  provided  as  follows: 
"  Be  it  enacted,  &c.,  That  it  shall  be  lawful  for  anj^  citizen  of 
the  United  States,  or  any  person  of  requisite  age  '  who  may 
be  entitled  to  become  a  citizen,  and  who  has  filed  his  declar- 
ation to  become  such,'  and  upon  payment  of  twenty-five  cents 
per  acre  to  file  a  declaration  under  oath  with  the  register  and 
receiver  of  the  land  district  in  which  any  desert  land  is 
situated,  that  he  intends  to  reclaim  a  tract  of  desert  land  not 
exceeding  one  section,  by  conducting  water  upon  the  same, 
within  the  period  of  three  years  thereafter. 

''Provided,  however,  that  the  right  to  the  use  of  water 
by  the  person  so  conducting  the  same,  on  or  to  any  tract  of 
desert  land  of  six  hundred  and  forty  acres  shall  depend  upon 
bona  fide  prior  appropriation;  and  such  right  shall  not  exceed 
the  amount  of  water  actually  appropriated,  and  necessarily 
used  for  the  purpose  of  irrigation  and  reclamation,  and  all 
surplus  water  over  and  above  such  actual  appropriation  and 
use,  together  with  the  waters  of  all  lakes,  rivers,  and  other 
sources  of  water  supply  upon  the  public  lands  and  not  navi- 
gable, shall  remain  and  be  held  free  for  the  appropriation  and 
use  of  the  public  for  irrigation,  mining  and  manufacturing 
purposes  subject  to  existing  rights. 

"  Said  declaration  shall  describe  particularly  said  section  of 
land  if  surveyed,  and  if  unsurveyed,  shall  describe  the  same 
as  nearly  as  possible  without  a  survey. 

"At  any  time  within  the  period  of  three  years  after  filing 
said  declaration,  upon  making  satisfactory  proof  to  the  regis- 
ter and  receiver  of  the  reclamation  of  said  tract  of  land  in  the 
manner  aforesaid,  and  upon  payment  to  the  receiver  of  the 
additional  sum  of  one  dollar  per  acre  for  a  tract  of  land  not 
exceeding  six  hundred  and  forty  acres  to  any  one  person,  a 
patent  for  the  same  shall  be  issued  to  him. 

"Provided,  that  no  person  shall  be  permitted  to  enter  more 
than  one  tract  of  land  and  not  to  exceed  six  hundred  and  forty 
acres,  which  shall  be  in  compact  form. 

"  Sec.  2.  That  all  lands  exclusive  of  timber  and  mineral 
lands  which  will  not,   without  irrigation,  produce  some  agri- 


182  ARID    RECilON    DOCTRINE.  [§  118,  119 

cultural  crop,  shall  be  deemed  desert  lands,  within  the  mean- 
ing of  this  act,  which  fact  shall  be  ascertained  by  proof  of  two 
or  more  creditable  witnesses  under  oath,  whose  affidavits  shall 
be  filed  in  the  land  office  in  which  said  tract  of  land  may  be 
situated. 

"  Sec.  3.  That  this  act  shall  only  apply  to  and  take  effect  in 
the  States  of  California,  Oregon  and  Nevada,  and  the  Terri- 
tories of  Washington,  Idaho,  Montana,  Utah,  Wyoming, 
Arizona,  New  Mexico  and  Dakota,  and  the  determination  of 
what  may  be  considered  desert  land  shall  be  subject  to  the 
decision  and  regulation  of  the  Commissioner  of  the  General 
I^and  Office.     [March  3,  1877.  "  ^ 

§  119.  Same.— Act  of  March  3rtl,  1891.— On  March  3rd, 
1891,  Congress  passed  an  Act  amendatory  to  the  Act  of  March 
3rd,  1877,  which  among  other  things  provided,  in  Sec.  18, 
that  rights  of  way  were  thereby  granted  to  any  canal  or  ditch 
company  formed  for  the  purpose  of  irrigation,  or  which  might 
thereafter  be  orgmiised  for  that  purpose;  and  in  the  following 
section  20,  it  especially  provided  that  this  Act  should  be 
applicable  to  both  existing  and  future  canals.  The  following 
is  a  copy  of  the  section  which  refers  to  the  subject  in  question: 

"  Sec.  18.  That  the  right  of  way  through  the  public  lands 
and  reservations  of  the  United  States  is  hereby  granted  to  any 
canal  or  ditch  company  formed  for  the  purpose  of  irrigation 
and  duly  organized  under  the  laws  of  any  State  or  Territory, 
which  shall  have  filed,  or  maj^  hereafter  file,  with  the  Sec- 
retary of  the  Interior  a  copy  of  its  articles  of  incorporation, 
and  due  proof  of  its  organization  under  the  same,  to  the 
extent  of  the  ground  occupied  by  the  water  of  the  reservoir, 
and  of  the  canal  and  its  laterals,  and  fifty  feet  on  each  side  of 
the  marginal  limits  thereof;  also,  the  right  to  take  from  the 
public  lands  adjacent  to  the  canal  or  ditch,  material,  earth, 
and  stone  necessary  for  the  construction  of  such  canal  or 
ditch;  Provided,  that  no  such  right  of  way  shall  be  so  located 
as  to  interfere  with  the  proper  occupation  by  the  government 
of  any  such  reservation,  and  all  maps  of  location  shall  be  sub- 
ject to  the  approval  of  the  Department  of  the  Government 
1  Supplement  Rev.  Stat.  U.  S.  1S74-1891;  p.  137. 


§  119.]  ARID    REGION    DOCTRINE.  183 

having  jurisdiction  of  such  reservation.  And  the  privilege 
herein  granted  shall  not  be  construed  to  interfere  with  the 
control  of  waters  for  irrigation  and  for  other  purposes  under 
the  authority  of  the  respective  States  and  territories. 

"Sec.  19.  That  any  canal  or  ditch  company  desiring  to 
secure  the  benefits  of  this  Act  shall,  within  twelve  months 
after  the  location  of  ten  miles  of  its  canal,  if  the  same  be  upon 
surveyed  lands,  and  if  upon  unsurveyed  lands,  within  twelve 
months  after  the  survey  thereof  by  the  United  States,  file  with 
the  register  of  the  land  ofi5ce  for  the  district  where  such  land 
is  located  a  map  of  its  canal  or  ditch  and  reservoir;  and  upon 
the  approval  thereof  of  the  Secretary  of  the  Interior,  the  same 
shall  be  noted  upon  the  plats  in  said  office,  and  thereafter  all 
such  lands  over  which  such  rights  of  way  shall  pass  shall 
be  disposed  of  subject  to  such  right  of  way. 

Whenever  any  person  or  corporation  in  the  construction  of 
any  canal,  ditch,  or  reservoir,  injures  or  damages  the  posses- 
sion of  any  settler  on  the  public  domain,  the  party  committing 
such  injury  or  damage  shall  be  liable  to  the  party  injured  for 
such  injury  or  damage. 

"  Sec.  20.  That  the  provisions  of  this  Act  shall  apply  to  all 
canals,  ditches,  or  reservoirs,  heretofore  or  hereafter  con- 
structed, wdiether  constructed  by  corporations,  individuals,  or 
associations  of  individuals,  on  the  filing  the  certificates  and 
maps  herein  provided  for.  If  such  ditch,  canal  or  reservoir, 
has  been  or  shall  be  constructed  by  an  individual  or  associa- 
tion of  individuals,  it  shall  be  sufficient  for  such  individual  or 
association  of  individuals  to  file  with  the  Secretary  of  the 
Interior,  and  with  the  register  of  the  land  office  where  said 
land  is  located,  a  map  of  the  line  of  such  canal,  ditch,  or 
reservoir,  as  in  case  of  a  corporation,  with  the  name  of  the 
individual  owner  or  owners  thereof,  together  with  the  articles 
of  association,  if  any  there  be.  Plats  heretofore  filed  shall 
have  the  benefits  of  this  Act  from  the  date  of  their  filing  as 
though  filed  under  it: 

Provided,  That  if  any  section  of  said  canal,  or  ditch,  shall 
not  be  completed  within  five  years  after  the  location  of  said 
section,  the  rights  herein  granted  shall  be  forfeited,  as  to  any 
uncompleted  section  of  said  canal,  ditch  or  reservoir,  to  the 


184  ARID    REGION    DOCTRINE.  [§  119,  120 

extent   that   the   same  is  not  completed    at  the  date  of  the 
forfeiture. 

Sec.  21.  That  nothing  in  this  Act  shall  authorize  such  canal 
or  ditch  company  to  occupy  such  right  of  way  except  for  the 
purpose  of  said  canal  or  ditch,  and  then  only  so  far  as  may  be 
necessary  for  the  construction,  maintenance,  and  care  of  said 
canal  or  ditch."  ^ 

§  120.  Same.— Acts  of  Congress  of  1889  and  1S<MK— For 
the  evident  purpose  of  reclaiming  the  lands  west  of  the  one 
hundredth  meridian,  which  were  then  and  are  now  but  a  bar- 
ren waste,  or  covered  only  with  sage  brush  and  grease  wood, 
the  government  has,  since  1885,  not  only  maintained  and  pro- 
tected this  doctrine  concerning  the  use  of  water  peculiar  to  the 
arid  west,  where  such  rights  were  vested  and  accrued,  but  has 
also  assumed  a  more  aggressive  position,  and  has  enacted  laws 
that  more  particularly  favor  and  encourage  the  use  of  water 
for  the  purpose  of  irrigation.  As  preliminary  to  future  legis- 
lation for  encouraging  the  settlement  of  that  section,  Congress 
on  the  2nd  of  March,  1889,  enacted  the  following: 

"  Irrigation  Survey: — For  the  purpose  of  investigating  the 
extent  to  which  the  arid  region  of  the  United  States  can  be  re- 
deemed by  irrigation  and  the  segregation  of  irrigable  lands  in 
such  arid  region,  and  for  the  selection  of  sites  for  reservoirs 
and  other  hydraulic  works  necessary  for  the  storage  and 
utilization  of  water  for  irrigation  and  for  ascertaining  the  cost 
thereof,  and  the  prevention  of  floods  and  overflows,  and  to 
make  the  necessary  maps,  *  *  *  and  the  Director  of  the 
Geological  Survey,  under  the  supervision  of  the  Secretary  of 
the  Interior,  shall  make  a  report  to  Congress  on  the  first  Monday 
in  December  of  each  year  showing  in  detail  how  the  said  money 
has  been  expended,  the  amount  used  for  actual  surve^^  and  en- 
gineer work  in  the  field  in  locating  sites  for  reservoirs,  and 
an  itemized  account  of  the  expenditures  under  this  and  any 
future  appropriation. "2 


iSupp.  Rev.  St.   of  U.  vS.   1891,       698,  Part  4;  a.s  to  a  similar  prior  Act 
p.  946,  Sees.  18,  19,  20,  21.  see  Sup.   Rev.  St.  IT.    S.   187  i;  P. 

SSupp.  Rev.  St.  U.  S.  1891,    P.       626,  Part  4,  afterv.ards  repealed. 


§  120,  121].  ARID    REGION    DOCTRINE.  185 

On  August  30th,  1890,  Congress  enacted  the  following; 
"  That  in  all  patents  for  lands  hereafter  taken  up  under  anj' 
of  the  land  laws  of  the  United  States,  or  on  entries  or  claims 
validated  by  the  "Act,  west  of  the  one  hundredth  meridian,  it 
shall  be  expressed  that  there  is  reserv^ed  from  the  lands  in  said 
patent  described  a  right  of  way  thereon  for  ditches  or  canals 
constructed  by  the  authority  of  the  United  States.  "^ 

§  121.  Future  Acts  of  Congress  on  tlie  Subject.— What  the 

future  legislation  of  Congress  will  be  upon  the  subject  of  irri- 
gation remains  to  be  seen.     But  it  may  not  be  considered  out 
of  place  to  say  that  from  the  acts  and  laws  recently  passed  by 
that  body,   and  from  the  bills  now  pending,,  it  is  likely  to 
receive  more  attention  in  the  future  than   it  has  heretofore. 
The  entire  region  west  of  the  one  hundredth  meridian  was 
originally  divided  into  Territories,  and  these  Territories,  as 
the  population  increased,  have  been  admitted  into  the  Union 
as    States.       The  admission  of  these  States  has    given   the 
west   additional  representation  in  Congress,  and  more  effec- 
tive legislation  may  be  expected.      That  such  legislation  is 
necessary  is  unquestionable.     Just  how  far  the  common  law 
rules,  as  understood  by  the  English  and  American  authorities, 
are  imfitted  for  the  arid  region  and  the  interests  peculiar  to 
that  part  of  the  country  should  be  settled  by  enactment.    How 
the  millions  of  acres  of  arid  land  in  the  West  can  best  be  re- 
claimed must  be  determined;  whether  it  shall  be  by  cession  of 
all  the  public  lands,  and  waters,  to  the  States  and  Territories 
in  which  they  lie,  or  w^hether  by  additional  Congressional  legis- 
lation for  the  reclamation  of  these  lands.     If  either  of  these 
methods  are  chosen,  then  arises  the  question  of  international 
and  interstate  waters.     The  transfer  of  the  arid  lands  to  the 
States  is  thought  by  many  to  be  essential   to    the  complete 
success  of  our  irrigation  system  and  the  fullest  development 
of  our  agricultural  resources.      Undoubtedly    the   land   and 
waters  in  the  public  domain,  being  joint  elements  necessary 
to  success,  should  be  under  one  control,  and  whether  this  con- 
trol should  be  vested  in  the  State  in  which  they  are  situated 
or  in  the  United  States,   as  at  present,  is  the  pertinent  ques- 

1  Sec  Sup.  to  the  Rev.  St.  U.  S.  1S91,  P.  792. 


186  ARID    REGION    DOCTRINE.  [§  121,  122 

tion.  The  former  method  has  its  advantages,  and  the  latter 
its  disadvantages.  If  in  the  beginning  of  the  settlement  of 
the  arid  region  the  United  States  Government  had  exercised 
the  same  supervision  over  the  diversion  and  use  of  water  that 
it  did  over  the  settlement  and  acquisition  of  title  to  the  land 
there  might  have  been  no  question  as  to  the  wisdom  of  the 
Government  continuing  in  the  ownership  and  control  of  the 
lands  and  waters  upon  the  public  domain.  But  its  failure  to 
take  any  steps  to  secure  the  economical  use  of  the  waters  or 
to  protect  the  rights  of  parties  diverting  it  and  applying  it  to 
beneficial  uses,  has  forced  upon  each  State  and  Territorial 
government  the  necessity  of  exercising  such  control  and  super- 
vision. The  result  of  this  has  been  that  these  States  and 
Territories  have  built  up  their  own  codes  of  laws  as  to  these 
matters,  which  form  the  basis  and  protection  of  property 
rights  of  enormous  value  and  importance.  That  these  laws 
differ  greatly  in  the  different  States  will  be  seen  in  the  further 
discussion  of  the  subject.  Any  attempt  on  the  part  of  the 
United  States  at  this  late  day  to  formulate  a  uniform  system 
of  laws  for  this  section  would  involve  the  present  irrigation 
interests  in  untold  confusion.  On  the  other  hand,  should  the 
question  be  left  to  the  States,  they  should  be  given  the  neces- 
sary authority  and  placed  in  the  possession  of  the  resources 
whereby  it  can  be  most  speedily  and  effectually  accomplished. 
The  possession  of  the  arid  lands  will  enable  the  States  to  ex- 
ercise a  systematic  supervision  over  the  diversion  and  use  of 
unappropriated  waters,  and  will  endow  them  with  resources 
to  assist  in  the  construction  of  storage  works  for  the  utiliza- 
tion of  waste  waters,  and  to  aid  in  the  construction  of  works 
too  great  in  magnitude  and  cost  to  be  undertaken  by  private 
enterprise. 

§  122.  Summary. — We  have  endeavored  to  show,  in  this 
chapter,  that  the  cause  of  the  change  from  the  common  law 
theories  upon  the  subject  of  waters,  in  the  "  Arid  Region," 
spring  out  of  the  difference  in  the  physical  conditions  between 
that  country,  where  the  common  law  first  originated,  and 
those  of  the  "Arid  Region."  And  in  following  the  history 
of  the  change,  we  have  seen  that  these  new  doctrines,  were 


§  122.]  ARID    REGION    DOCTRINE.  187 

first  enforced  by  the  early  California  miners,  who  out  of  the 
very  necessities  of  the  case,  adopted  rules  and  customs,  based 
upon  the  primary  principle  of  free  land,  to  which  discovery 
and  appropriation  gave  title,  which  rules  and  customs  gov- 
erned all  questions  relative  to  the  title  of  mining  claims  and 
the  appropriation  of  water  for  working  the  same;  that  these 
new  doctrines  were  first  sanctioned  by  the  State  legislature  of 
California,  afterwards  by  the  Courts  of  that  State,  and  finally 
by  the  Supreme  Court  of  the  United  States,  and  Congress; 
that  Congress  has  not  only  sanctioned  these  doctrines, 
peculiar  to  this  part  of  the  country,  and  as  originating  out  of 
the  necessities  of  the  early  miners,  as  being  applicable  to  the 
working  of  the  mines,  but  also  as  being  lawfully  extended  to 
all  other  beneficial  uses  or  purposes  for  which  water  may  be 
essential — to  irrigation  for  the  purpose  of  agriculture  and 
horticulture,  to  milling,  manufacturing  and  municipal  pur- 
poses, and  has  passed  acts,  encouraging  those  uses  of  the 
water,  for  an}'  of  these  beneficial  purposes  named.  The  fun- 
damental hypothesis  of  the  theory  are  that  the  development  of 
that  portion  of  the  country  known  as  the  "Arid  Region,"  and 
the  general  welfare  of  the  people  demanded  that  any  one  so 
desiring  shall  be  entitled  to  apply  to  beneficial  uses,  any 
unemployed  water  of  natural  streams;  and  that  the  rights 
acquired  in  water  shall  be  enjoyed  in  accordance  with  the  date 
of  acquisition  of  such  rights,  priority  of  date  of  acquisition 
giving  the  better  right  to  such  enjoyment.  The  supporters  of 
this  new  theory  demand  from  State  Legislatures  enact- 
ments defining  the  rights  which  may  be  acquired  in  water, 
and  providing  for  the  acquisition  and  enjoyment  of  these 
rights,  and  prescribing  penalties  for  their  abuse.  They  de- 
mand from  Courts  decisions  concerning  water  rights  which 
are  applicable  to  the  needs  and  necessities  of  the  people  in 
the  "Arid  Region,"  and  are  supported  by  reasoning  pertinent 
to  the  existing  climatic  conditions,  not  decisions  marred  by 
a  forced  adherence  to  precedents  applicable,  perhaps  in 
other  lands  or  other  parts  of  our  own  country,  but  not  to  the 
hot,  dry,  arid  region  of  the  west.  The  laws  of  the  various 
western   States  and   Territories,  as  wc  shall   see    in  another 


188  ARID    REGION    DOCTRINE.  [§  122 

part  of  this  work,  all  show  the  encroachment  of  this  new 
theory  upon  the  old  English  common  law  doctrine,  with  vary- 
ing degrees  of  success.  It  is  another  phase  of  the  conflict 
between  conservatism  and  progress,  and  the  spirit  of  the 
times  points  to  the  triumph  of  the  new  theory. 


CHAPTER  V. 


Acquisition,  Ownership,  Disposal  of  juid  Jurisdiction  over 
Lands  and  Waters  by  the  United  States, 


Sections. — 

123.  Scope  of  present  chapter. 

I.    SOURCE   OF  TITLE  OF  GOVERN- 
MENT I.ANDS  AND   WATERS. 

124.  What  are  public  lands. 

125.  Power  of  the  United  States  to 

acquire  lands. 

Same. — Continued. 

How  the  United  States  ac- 
quires land. 

Same — Treaties. 

Same. — Mexico  and  England. 

Government  takes  land  sub- 
ject to  equitable  rights  of 
property  therein. 

Same. — Authorities  dis- 
cussed. 

Same. — Same. 

133.  Indian  title  of  occupancy. 
II.    DISPOSAI,  OF  PUBLIC   LANDS 

AND   WATERS. 

134.  Right  of  the  United  States  to 

dispose  of  its  lands. 

135.  Ownership  of  soil  and  water 

distinguished. 

136.  How  the  government  disposes 

of  its  lands. — Special  Res- 
ervations. 


126. 
127. 

128. 
129. 
130. 


131- 


132. 


internal   im- 


Sections.— 

137.  Donations    for 
provements. 
Same. — Continued. 
Same. — School  lands. 
Town-site  law. 

Pre-existing  water  rights  not 
effected    by   Congressional 
grants. 
142.  Regular  disposal  through  the 
land  office.— Pre-emption. 
Same.  —  Homestead  —  Public 
Sale— Military   Land  War- 
rants. 
Same — Rights  attach  when. 
JURISDICTION  OVER  PUBLIC 
LANDS  AND   WATERS. 

145.  Jurisdiction  of  appropriation 

of  water   upon    the  pul)lic 
domain. 

146.  Lex   Loci  Sitae.     After  title 

has  passed  from  the  govern- 
ment. 

147.  Grantee  takes  subject  to  con- 

ditions annexed  to  grant. 

148.  Same  — Continued,  same  au- 

thorities. 


138. 

139- 
140. 
141. 


143- 


144. 
Ill 


§123.  Scope  of  Present  Chapter. — It  is  necessar)-  at  this 
point  in  our  work,  in  order  to  get  at  the  very  foundation  of 
the  title  to  the  waters  of  the  "  arid  region  "  to  go  back,  and 
trace  the  source  of  title  to  the  same,   to  the  time  of  their 


190  JURISDICTION    OVER  [§  123,  124 

acquisition  by  the  Government  of  the  United  States;  and  as 
this  can  only  be  done,  in  connection  with  the  lands  over  which 
they  flow,  the  two  will  be  treated  together  in  the  present 
chapter.  And  it  is  proposed  in  this  chapter  to  consider  only 
such  lands  and  waters  as  are,  or  were  at  one  time,  the  property 
of  the  United  States.  The  principles  governing  the  law 
relating  to  lands  and  waters  belonging  to  the  iudi-vidual  States 
will  be  treated  of  in  Part  II  of  this  volume.  And  for  the 
purposes  of  this  chapter,  when  the  terms  "public  lands"  or 
"public  domain"  are  used,  they  are  meant  to  include  not 
only  the  soil,  but  also  the  waters  from  any  source  upon  the 
same,  although  thej'  may  not  be  specifically  mentioned.  We 
will  devote  the  chapter  to  a  discussion  of  how  the  United 
States  acquired  its  public  lands  and  waters,  the  title  acquired 
thereto,  and  the  disposal  thereof.  Also  a  discussion  as  to  the 
jurisdiction  over  the  lands  and  waters  upon  the  public  domain 
of  the  United  States. 

I.  Source  of  Title  of  Government  Lands  and  Waters. 

§121.  What  are  PuMc  Lands. — The  term  "public 
domain"  in  its  broadest  sense  comprehends  all  lands  and 
waters  in  the  possession  or  ownership  of  the  United  States, 
and  including  lands  owned  by  the  several  States,  as  distin- 
guished from  lands  possessed  bj''  private  individuals  or  cor- 
porations. The  term  "public  lands"  only  embodies  such 
lands  as  are  subject  to  the  sale  or  other  disposition  by  the 
United  States  under  general  laws.^  It  is  a  well  settled  prin- 
ciple that  land  once  reserved  by  the  Government  or  appropri- 
ated for  any  special  purpose,  ceases  to  be  a  part  of  the  public 
lands,  and  in  all  grants  or  proclamations,  declaring  public 
lands  open  to  settlement,  the  portion  already  reserved  is 
always  excepted,  though  the  exception  is  not  specifically 
mentioned.^     The  rule  is  also  well  settled  by  a  long  line  of 

iNewhall   vs.   Sanger,   92  U.  S.  2  Wilcox  vs.  Jackson,    13   Peters 

766;  Wirth   vs.    Bronsou,  98  U.  S.  49S;  Recher  vs.  Weatherby,  95  U. 

118;  Heydenfeldt  vs.  Daney  Gold  S.  517;  I,eavenworth  etc.  Ry.  Co. 

M.   Co.,  10   Nev.  290;   Anderson's  vs.    U.   S.,   92   U.   S.    733;    United 

Law  Diet.  Sub.  Public  Land;  Bou-  States  vs.  Stone,  2  Wall.  525. 
vier's  Law  Diet.  Sub.  Public  Land. 


§  124,  125.J  LANDS   AND   WATERS.  191 

decisions,  that  when  public  lands  have  been  surveyed  and 
placed  on  the  market,  or  otherwise  opened  to  private  acquisi- 
tion, a  person  who  complies  with  all  the  requisites  necessary 
to  entitle  him  to  a  patent  in  a  particular  lot  or  tract  is  to  be 
regarded  as  the  equitable  owner  thereof,  and  the  land- is  no 
longer  public  or  open  to  location.^ 

No  lands,  wherein  the  Indian  right  to  occupancy  has  not 
been  extinguished,  are  public.^  The  United  States  as  pro- 
prietor merely,  also  owns  and  holds  certain  public  lands  within 
the  boundaries  of  the  several  States,  that  have  been  acquired 
by  cession,  from  individual  States,  and  by  treaties  with 
Indians  and  other  nations,  and  are  possessed  by  virtue  of  the 
power  vested  by  the  Constitution.  In  fact,  a  large  portion  of 
the  public  domain,  owned  b}'  the  United  States,  is  within  the 
confines  of  the  several  States. 

§  125.  Power  of  tlie  United  States  to  Acquire  Lands. — The 

right  of  the  Federal  Government  to  acquire  lands  is  sustained 
by  several  decisions  of  the  Supreme  Court  of  the  United  States, 
as  a  necessary  accompaniment  of  the  power  to  make  treaties. 
The  authority  given  by  the  Constitution  is,  that  the  President  of 
the  United  States  '  'shall  have  power,  by  and  with  the  advice  and 

1  Wirth  vs.  Branson,  98  U.  S.  119,  with  the  public  lauds,  as  equiva- 

where  the  Court  held,  that  when  lent  to  a  patent  issued;  and  when, 

public  lands  have   been   open   to  in  fact  the  patent   does   issue,   it 

private  acquisition,  a  person  who  relates  back   to  the   inception   of 

complies  with  all  the  requisites  to  the  right  of  the  patentee,  so  far  as 

entitle   him    to  a  patent  in  a  par-  it  may  be  necessary  to  cut  off  in- 

ticular  lot,  is  to  be  regarded  as  the  tervening  claims, 
equitable  owner  thereof,  and  the  See  also  Frisbie  vs.  Whitney',  9 

lan<l  is  no  longer  open  to  location;  Wall.  1S7;  Yosemite  Valley  Case, 

and  that  the  public  faith  had  be-  15  Wall.  77;  Railroad  Co.  vs.  Mc- 

come  pledged  to  him,  and  any  sub-  Shane,  22  Wall.  444;    Shipley  vs. 

sequent     grant    of     the    land    to  Cowan,  91  U.  S.  330. 
another  party  is  void,  unless  the  2 Leavenworth,    etc.,  R}'.  Co.  vs. 

first  location  or  entry  be  vacated  U.  S.,  92  U.  S.  723;  where   it   was 

and  set  aside.  held    that   the    Indians   have   the 

Lytte  vs.  Arkansas,  9  How.  314;  unquestionable  right  to  the  lands 

Stark   vs.    Starr,   6    Wallace   402;  they    occupy,    until    it    be    extin- 

where  it  was  held  that  the  right  guished  by  a  voluntary  cession  to 

to  a  patent  once  vested,  is  treated  the   Government.    United    States 

by  the  Government,  when  dealing  vs.  Carpenter,  in  U.  S.  347. 


192 


JURISDICTION    OVER 


[§125 


consent  of  the  Senate,  to  make  treaties,  provided  two-thirds  of 
the  Senators  present  concur."^  From  this  it  may  be  readily 
seen,  the  power  to  make  treaties  is  given  in  general  terms,  by  the 
Constitution,  without  any  description  of  the  objects  intended 
to  be  embraced  by  it;  and  consequently,  it  was  designed  to  in- 
clude all  those  questions,  which  in  the  ordinary  intercourse 
of  nations,  are  usually  made  subjects  of  negotiations  and  treat}', 
and  which  are  consistent  with  the  nature  of  our  institutions, 
and  with  the  relation  between  the  States  and  the  United 
States.  And  since  the  acquisition  and  disposal  of  territory 
between  nations  is  one  of  the  most  common  subjects  of  ordinary 
intercourse,  it  follows  that  the  treaty-making  power  of  the 
United  States  has  authority  to  make  negotiations  with  other 
nations  concerning  the  acquisition  of  additional  territory  by 
purchase  or  otherwise.- 


1  Constitution  of  the  United 
States,  Art.  2,  Sec.  2,  CI.  2. 

2  See  upon  subject  of  treaty- 
making  power,  Holmes  vs.  Jenni- 
son,  14  Pet.  540;  Holden  vs.  Joy.  i7 
Wal.  211. 

Amer.  Ins.  Co.  vs.  365  Bales  of 
Cotton,  I  Peters,  511,  where  it  was 
held  that  the  Constitution  of  the 
United  States  confers  absolutely 
on  the  government  of  the  Union 
the  power  of  making  war  and  of 
making  treaties^  Consequently, 
that  Government  possesses  the 
power  of  acguiritig  territory, 
either  by  conquest  or  by  treaty. 

I  Kent  Comm.  165,  166;  Story 
Const.  Sec.  1508,  and  cases  cited; 
annals  of  Congress,  14  Cong,  ist 
Session,  1815,  1S16,  pp.  489,  526, 
564,  539;  Works  of  Hamilton,  i 
Vol.  pp.  501-528;  annals  of  Con- 
gress, 4  Cong,  rst  Sess.  1795,  1796, 
P.  760;  Calhoun's  Works,  P.  202; 
People  vs.  Gerke  &  Clark,  5  Cal. 
381,  384;  Duer  Const.  Jur.,  P.  228, 
etseq.:  Ware  vs.  Hilton  et  al.,  3 
Dall.  199;  Marbury  vs.  Madison,   i 


Cranch,  137;   F'oster   &   Elam  vs 
Neilsou,  2  Pet.  253. 

Cherokee  Nation  vs.  Georgia,  5 
Pet.  I,  where  it  was  held  that: 
The  Cherokees  are  a  State.  They 
have  been  uniformly  treated  as  a 
State  since  the  settlement  of  our 
country.  The  numerous  treaties 
made  with  them  by  the  United 
States  recognizes  them  as  a  peo- 
ple capable  of  maintaining  the  re- 
lations of  peace  and  war;  of  being 
responsible  in  their  political  char- 
acter for  any  violations  of  their 
engagements  or  for  any  aggres- 
sions committed  on  the  citizens  of 
the  United  States  by  any  individ- 
ual of  their  community.  Laws 
have  been  enacted  in  the  spirit  of 
these  treaties.  The  Acts  of  our 
Government  plainly  recognizes 
the  Cherokee  Nation  as  a  State, 
and  the  courts  are  bound  by  these 
Acts. 

Patterson  vs.  Winn,  et  al.,  5  Pet. 
233;  Worcester  vs.  State  of  Geor- 
gia, 6  Pet.  515:  City  of  New  Or- 
leans vs.  De  Armas  et  al.,  q  Pet. 


§  126]. 


LANDS    AND    WATERS. 


193 


§  12<>.  Same— CoutiimtMl.—  It  was  by  the  treaty-making 
power  alone  that  the  United  States  had  the  authority  to  ac- 
quire the  Louisiana  lands.  In  1803  the  United  States  Minis- 
ter to  France  conducted  a  treaty  with  Napoleon  the  First, 
whereby  the  immense  Territory  of  Louisiana  was  to  be  ceded 
to  the  United  States  upon  the  payment  of  $15,000,000.  The 
treaty  was  sent  to  the  Senate  by  President  JeflFerson  for  ratifi- 
cation, and  in  his  accompanying  message  he  advised  that 
it  be  adopted  without  debate,  which  has  been  taken  by  some 
to  clearly  indicate  that  he  believed  the  United  States  Gov- 
ernment had  no  power  under  the  Constitution  to  acquire  land. 
Such  an  opportunity  was  not  to  be  lost  and  the  Senate  rat- 
ified the  treaty  in  compliance  with  the  message  of  the  Presi- 
dent. But  later  this  view  of  Mr.  Jefferson  has  been  clearly 
shown,  under  the  cases  cited,  to  be  erroneous,  on  the  ground 
that  the  authority  to  acquire  land  is  one  of  the  most  neces- 
sary   and    essential    accompaniments   of  the  treaty  making.^ 


224;  2  Bryce's  American  Common- 
wealth, 62. 

1  Ibid.  2  Br3'ce's  American  Com- 
monwealth, 62;  Cooley's  Louisi- 
ana Purchase.  As  to  the  relative 
extent  of  the  power  of  Congress 
and  of  the  treaty  making  power, 
see  Fostoer  vs.  Neilson,  2  Pet. 
314,  in  which  Chief  Justice  Mar- 
shall in  delivering  the  opinion  of 
the  Court  said:  "A  treaty  is  in  its 
nature  a  contract  between  two 
nations,  not  a  Legislative  Act.  It 
does  not  generally  effect,  of  itself, 
the  object  to  be  accomplished,  es- 
pecially so  far  as  its  operation  is 
infraterritorial;  but  is  carried  in- 
to execution  by  the  sovereign 
power  of  respective  parties  to  the 
instrument.  In  the  United  States 
a  different  principle  is  established. 
Our  Constitution  declares  a  treaty 
to  be  the  law  of  the  land.  It  is, 
consequently,  to  be  regarded  in 
Courts   of  Justice    as   equivalent 


to  an  Act  of  Legislature,  when- 
ever it  operates  of  itself  without 
the  aid  of  any  legislative  provi- 
sion. But  when  the  terms  of  the 
stipulation  impart  a  contract — 
when  either  of  the  parties  engaged 
to  perform  a  certain,  a  peculiar 
Act — the  treaty  addresses  itself  to 
the  political,  not  the  judicial  de- 
partment ;  and  the  Legislature 
must  execute  the  contract  before 
it  can  become  a  rule  for  the 
Court." 

See  also  on  this  subiect,  Chero- 
kee Nation  vs.  Georgia,  5  Pet.  i, 
46;  United  States  vs.  Arredondo, 
6  Pet.  691,  735;  Williams  vs.  Suf- 
folk Ins.  Co.,  13  Pet.  420;  Lattimer 
vs.  Poteet,  14  Pet.  4,  15;  Pollard's 
Lessee  vs.  P^iles,  2  How.  602;  Pol- 
lard's Lessee  vs.  Ilagan,  3  How. 
228;  Luther  vs.  Borden,  7  How. 
I,  56;  La  Roche  vs.  Jones,  9  How. 
127,  154;  I'ellows  vs.  Blacksmith, 
19  How.  366,   372;    United  Stat.se 


194   •  JURISDICTION   OVER  [§  126.  127 

And  it  has  also  been  held  by  the  Supreme  Court  from  the 
very  foundation  of  the  Government,  that  the  United  States 
could  dispose  of  the  fee  simple  to  the  public  lands;  hence  a 
fortiori,  the  government  must  have  a  perfect  right  and  title 
to  the  same  before  it  could  so  dispose  of  them. ^ 

§  127.  How  the  United  States  Acquires  Lands. — In  order 
that  one  may  obtain  a  clearer  understanding  of  the  general 
source  of  title  of  the  United  States  to  lands  and  waters  this 
subject  will  be  very  briefly  traced. 

The  English  possessions  in  America  were  not  claimed  by 
right  of  contest,  but  by  right  of  discovery;  and  all  discoveries 
made  by  persons  acting  under  the  authority  of  that  govern- 
ment were  for  the  benefit  of  that  nation,  and  not  for  the  bene- 
fit of  such  persons  individually.  The  same  may  be  said  rela- 
tive to  sections  of  the  country  discovered  by  individuals  under 
the  authorit}^  of  other  European  nations,  that  the  lands  dis- 
covered were  for  the  benefit  of  the  respective  nations.  And, 
according  to  the  principles  of  international  law,  as  then  un- 
derstood by  the  civilized  powers  of  Europe,  the  Indian  tribes, 
in  the  New  World,  were  regarded  as  mere  temporary  occu- 
pants of  the  soil;  and  the  absolute  rights  of  property  and  do- 
minion were  held  to  belong  to  the  European  nations  by  which 
any  particular  portion  of  the  country  was  first  disco vered.^ 
And  whatever  forbearance  may  have  been  sometimes  prac- 
ticed towards  the  unfortunate  aborigines,  either  from  human- 
ity or  policy,  yet  the  territory  they  occupied  was  disposed  of 
by  the  governments  of  Europe  at  their  pleasure,  as  if  it  had 
been  found  entirely  uninhabited.  The  Revolution  having  taken 
place  b}^  which  the  power  of  England  over  the  colonies  was 
shaken  off  by  the  treaty  of  1783,  the  English  possessions  in 

vs.  Andres  Sastellero,  2  Black.  320;  119  U.  S.  55;  Beecher  vs.  Weath- 

Phillips   vs.   Payne,   2    Otto.    130;  erby  95  U.  S.  517,  525,  where  the 

United  States  vs.  Forty-three  Gal-  Court  held,  that  the  right  of  the 

Ions  of  Whiskey,  3  Otto,  188,  196;  United  States  to  dispose  of  the  fee 

Hawenstein  vs.  Lynham,  10  Otto,  of   lands  occupied  by  the  Indian 

490;    U.    S.    Const.    Art.   6,   CI.    2;  tribes,  has  always  been  recognized 

Dred  Scott  vs.  Sandford,  19  How.  by  that  Court  from  the  foundation 

630.  of  the  Government. 

iButz  vs.  Northern  Pac.  Ry.  Co.,  2 Martin  et  al.    vs.    Lessee    of 


§  127].  LANDS    AND    WATERS.  195 

that  territory,  which  is  now  included  within  the  boundaries  of 
the  United  States,  became  the  property  of  the  several  States, 
from  the  fact  that  they  were  united,  at  that  time,  only  by  the 
Articles  of  Confederation,  and  the  Federal  Government  had 
not  been  formed.  And  afterwards  several  of  the  thirteen  orig- 
inal States  claimed  the  title  to  vast  tracts  of  territory,  which 
extended  far  into  the  interior  and  equaled  in  several  cases, 
many  times  the  present  size  of  the  State  laying  claim  to  the 
same.  Thus  Virginia,  at  one  time,  laid  claim  to  all  territory 
north  and  west  of  the  Ohio  River.  Afterwards  this  land  was 
ceded  by  New  York,  Virginia,  Massachusetts  and  Connecticut 
to  the  United  States,  and  the  Northwest  Territorial  Govern- 
ment was  organized,  from  which  the  States  of  Ohio,  Indiana, 
Illinois,  Michigan  and  part  of  Minnesota  were  formed.^  After 
the  adoption  of  the  Constitution  many  of  the  original  States 
ceded  vast  tracts  of  lands  to  the  United  States  which  lands  be- 
came a  part  of  the  public  domain,  to  which  the  general  gov- 
ernment held  the  fee  by  force  of  the  deeds  of  cession,  the  Con- 
stitution and  by  the  statutes  enacted  for  that  purpose.  By 
this  means  the  Government  became  simply  the  proprietor  of 
these  lands  and  now  holds  them  only  as  such  proprietor  where 
they  are  located  in  the  States  created  out  of  the  territory  ceded 
to  it,  and  not  b}'  any  municipal  sovereignty  or  right  of  emi- 
nent domain  which  it  may  be  supposed  that  it  possessed.^ 

Thus  one  method  by  which  the  United  States  acquires  land 
is  by  cession  of  the  same  by  the  individual  States. 

Waddell,  i6  Peters,   367;  Johnson  force  of  the  deeds  of  cession  and 

vs.  Mcintosh,  8  Wheat.  575.  the  statutes  connected  with  them, 

iLangdeauvs.  Haines,  21  Wall.  and  not   by    any  municipal  sover- 

521;  Morton  vs.  Nebraska,  21  Wall.  eignty,  which  it  may  be  supposed 

660.  See  also  Wallace  vs.  Parker,  6  they  possess  or  have  received  by 

Peters,  680;  Jones  vs.  Van  Zant,  5  compact  with  the  new  States  for 

How.  215;    Strader  et  al.  vs.  Gra-  that  particular  purpose, 

ham,  10  How.  82;  Penn.  vs.  Wheel-  Clark  vs.  Smith,  13  Pet.   195;  U. 

ing  Bridge  Co.,  18  How.  421;  Bates  S.  vs.   Gratiot,    14  Pet.   526;   Fort 

vs.  Brown,  5  Wal.  710;  Messinger  Leavenworth,    etc.,  Ry.    Co.     vs. 

vs.  Mason,  10  Wal.  507;  Clinton  vs.  Lowe,  114   U.S.   525:   Bagnel   vs. 

Englebrecht,  13  Wall.  434.  Broderick,   13   Pet.  436;  U.  S.  vs. 

2Polard  vs.  Hagan,  3  How.  212.  Maxwell  Land   Grant,    121    U.   S. 

The  United  States  now  holds  the  325;  U.  S.  vs.  Repentigny,  5  Wall, 

public  lands  in  the  new  States  by  211;  McMicken  vs.  U.   S.,  97  U.  S. 


196 


JURISDICTION    OVER 


[§128 


§  128.  Same. — Treaties. — Other  tracts  of  land  which  are 
now  included  in  the  public  domain  of  the  United  States  have 
been  acquired  by  treaties  with,  and  b^^  purchases  from,  other 
countries.  In  1803  France  ceded  to  the  United  States,  for 
the  sum  of  fifteen  million  dollars,  all  that  territory  which  now 
forms  the  State  of  lyouisiana,  parts  of  Alabama  and  Missis- 
sippi, all  of  Arkansas,  Missouri,  Iowa,  part  of  Minnesota,  all 
of  Dakota,  Nebraska,  Kansas,  part  of  Indian  Territory,  and 
parts  of  Montana,  Wj^oming  and  Colorado.  And  as  Spain 
also  laid  claim  to  part  of  this  territory  between  the  Missis- 
sippi and  Perdido  Rivers  wrongfully,  as  the  United  States 
contended,  in  the  year  1810  President  Madison  issued  a 
proclamation  directing  the  forcible  occupation  and  possession 
of  this  territory  by  the  United  States,  and  possession  was 
accordingly  taken. ^ 


204;  Schulenburg  vs.  Hariman,  21 
Wal.  44;  Farnsworth  vs.  Min.  Ry. 
Co.,  92  U.  S.  49;  Martin  vs.  Wad- 
dell,  16  Pet.  367;  U.  S.  vs.  Kaj^ana, 
118  U.  S.  375;  Johnson  vs.  Mcln- 
tosli,  8  Wheat.  543;  Fletcher  vs. 
Peck,  6  Cranch,  77;  i  Kent's  Com., 

257,  259- 

1  On  the  first  of  October,  1800, 
a  secret  treaty  was  made  at  St. 
Ildefonso  between  Spain  and 
Bonaparte,  then  First  Consul,  by 
which  Spain  agreed,  on  certain 
conditions  to  be  performed,  to  ret- 
rocede  to  the  French  Republic, 
"the  Colony  or  Province  of  Louisi- 
ana, with  the  same  extent  that  it 
now  has,  in  the  hands  of  Spain, 
and  that  it  had  when  France  pos- 
sessed it,  and  such  as  it  ought  to 
be  after  the  treaties  subsequently 
entered  into,  between  Spain  and 
the  other  States."  The  ambiguity 
of  the  last  expression  w^as  the 
cause  of  the  subsequent  misunder- 
standing between  Spain  and  the 
United  States.  Did  it  mean  that 
Spain  was  to  retrocede  to  France, 


all  the  territory  which  the  latter 
had  formerly  possessed,  under  the 
name  of  Louisiana,  or  only  so 
much  as  remained  after  the  sepa- 
ration of  West  Florida  therefrom 
and  the  cession  thereof  to  Great 
Britain?  The  United  States  con- 
tended for  the  former  construction 
and  Spain  for  the  latter. 

As  to  the  construction  of  the 
United  States  Supreme  Court 
tipon  the  subject  of  the  Spanish 
title  to  these  lands,  after  the  treaty 
of  Ildefonso  see  i. 

United  States  vs.  Rynes,  9  How. 
127;  Davis  vs.  Police  Jury  of  Con- 
cordia, 9  How.  280;  United  States 
vs.  Lynde's  Heirs,  11  Wall.  632; 
New  Orleans  vs.  DeArmas,  9  Pet. 
224;  Foster  vs.  Neilson,  2  Peters 
253;  Arredondo  Case,  6  Peters,  691; 
United  States  vs.  Percheman,  7 
Peters,  51;  United  States  vs.  D'Au- 
terive,  10  How.  609;  United  States 
vs.  Philadelphia  &  New  Orleans, 
II  How.  609;  Montault  vs.  United 
States,  12  How.  47;  United  States 
vs.  Constant,  12  How.  437. 


§  128,  129J.  LANDS    AND    WATERS.  197 

Oil  February  22nd,  1821,  Spain  in  consideration  of  the  as- 
sumption b\'  the  United  States  of  claims  against  that  Govern- 
ment of  certain  citizens  of  this  Government,  to  an  amount  not 
exceeding  the  sum  of  five  million  dollars  and  the  exoneration 
of  Spain  from  all  demands  in  the  future,  on  account  of  such 
claims,  ceded  to  the  United  States  the  Floridas  and  all  interests 
that  she  claimed  in  the  disputed  portion  of  Louisiana,  formerly 
ceded  by  France.  Out  of  this  tract  of  land  the  present  State 
of  Florida  was  formed.^ 

§129.  Same— Mexico  and  Eiijjjlaiid.— In  1848  Mexico,  by 
the  treaty  of  Guadalupe  Hidalgo,  ceded  to  the  United 
States  the  tracts  of  land  embracing  the  Pacific  highlands, 
from  the  Gila  River  to  the  42°  parallel,  and  from  the  Texas 
border  and  Rocky  Mountains  to  the  Pacific  Ocean. ^'  After- 
wards Mexico  sold  to  the  United  States  the  Messilla  Valley, 
south  of  the  Gila  River  to  the  present  southern  boundary  of 
the  United  States,  by  what  is  known  as  the  Gadsden  Purchase, 
the  consideration  being  the  sum  of  ten  million  dollars. 

In  1846,  by  a  compromise  with  England,  the  northwest 
corner  of  the  United  States  was  added  to  the  public  domain. 
Both  countries  claimed  the  tract  by  right  of  discovery.  And, 
in  the  negotiations  pending  the  settlement  of  the  dividing 
line,  England  demanded  that  the  Columbia  River  be  the 
division,  while  the  United  States  demanded  the  "54°  40',  or 
fight."  When,  however,  England  agreed  to  an  extension  of 
the  dividing  line,  which  had  been  fixed  east  of  the  mountains 
of  the  49°  to  the  Pacific,  the  government  assented,  rather 
than  contend  for  territory  of  which  we  had  little  knowledge, 
and  the  49°  was  then  agreed  upon. 

This  will  suffice  to  show  how  the  United  States  became  pos- 
sessed of  her  public  domain,  although  there  were  other  grants 
of  lands  of  minor  importance. 

UJniteclvStatesvs.  Lynde's  Heirs,  which,  prior  thereto,  in  1835,  had 

II  Wall.  632;  United  .States  vs.  De  declared  its  own  freedom  as  "The 

Amistad,  15  Peters,  518;  Coniegys  Republic  of  Texas,"  and  in  1845 

vs.  Vasse,  i  Peters,  193;  Meade  vs.  was  annexed  to  the  United  States. 

United  States,  15  Wall.  69S.  McKinney  vs.  Savieji^o,  18  How. 

SThis    treaty,   however,  did  not  235;    Viisse    vs.    Brownsville,     20 

refer    to    any    ])ortion    of    Texas,  Wall.  L.  D.  420. 


198  JURISDICTION    OVER  [§  130 

§  130.  GoTeriiment  Takes  Lands  Subject  to  Equitable 
Rights  of  Private  Property  Tlierein. — The  United  States 
took  the  fee  to  all  lands  acquired  by  cession  from  the  various 
States  and  countries,  subject  to  two  reservations,  whether 
named  specificallj^  in  the  treaty  or  grant  or  otherwise:  First, 
All  bona  fide  grants  to  individuals,  prior  to  the  treaty  or  deed 
of  cession,  by  the  State  or  country'  then  owning  the  land; 
and,  second,  the  Indian  title  of  occupancy.  In  regard  to  the 
first  class,  all  the  tracts  granted,  although  at  that  time  com- 
paratively sparsely  populated,  were  dotted  over  with  land 
claims  of  private  individuals.  And  the  rights  to  private 
property,  whether  they  consisted  of  the  soil  or  in  rights  of 
waters,  or  both,  were  not  impaired  by  the  change  of  sover- 
eignty and  jurisdiction.  They  were  fully  secured  by  the  law 
of  nations,  and  generally  by  treaty  stipulations;  and  the 
United  States  has  always  honored  and  protected  all  valid 
claims  of  this  nature.  The  ownership  of  so  much  of  the  soil, 
or  to  certain  rights  of  water,  as  was  vested  in  an  individual 
proprietorship,  prior  to  the  grant,  did  not  pass  to  the  Govern- 
ment. It  only  took  the  land  subject  to  all  equitable  rights  of 
private  property  therein  which  existed  at  the  time  of  the 
transfer.  Valid  claims  to  lands  or  waters,  or  both,  whether 
grounded  upon  an  inchoate  or  perfected  title  were  ascertained 
and  adequately  protected.  This  dut}^  enjoined  by  a  sense  of 
natural  justice  and  by  treaty  obligations,  could  only  be  dis- 
charged by  prohibiting  any  intrusion  whatever  upon  the 
claimed  lands  or  water  rights  until  an  opportunity  was 
afforded  the  parties  in  interest  for  a  judicial  hearing  and 
determination.  As  was  expected,  many  unfounded  and  fraud- 
ulent claims  would  be  presented  for  confirmation ,  and  as  there 
was  no  way  of  separating  them  from  those  which  were  valid, 
without  an  investigation  by  a  competent  tribunal,  Congress 
therefore  shaped  our  legislation  so  that  all  lands  to  which 
a  claim  was  attached  should,  until  it  was  barred  or  passed 
upon,  be  excluded  from  any  mode  of  acquiring  them.^ 

1  See   Acts   of  Congress    i8ii,   2  the  boundaries  of  an  alleged  Mex- 

Stat.  at  L.  pp.  664,  665,  Sec.  6,  10.  lean  or  Spanish  grant,  which  were 

In  Newhall  vs.  Sanger,  92  U.  S.  then   sub  judice  are    not    public 

761,  it  was  held,  that  lands  within  within  the  meaning  of  the  Acts  of 


§  131].  LANDS    AXD    WATERS.  199 

§  131.  Same.— Authorities  Discussed. — Hence  all  lands  to 
which  there  was  a  claim  of  the  nature  described  in  the  last 
section  did  not  become  a  part  of  the  public  domain  of  the 
United  States  unless  the  claim  was  settled  adversely  to  the 
claimant.  lu  the  case  of  the  United  States  vs.  Arredondo  et 
al.,^  decided  in  1832,  the  Court  said:  "The  United  States 
seem  never  to  have  claimed  any  part  of  what  could  be  shown 
by  legal  evidence  and  local  law  to  have  been  severed  from  the 
royal  domain  before  their  right  attached,"  *  *  *  "The 
United  States  have  by  three  cessions  acquired  territory, 
within  which  there  have  been  many  private  claims  to  land 
under  Spanish  titles.  The  first  in  point  of  time  was  by  the 
compact  with  Georgia,  in  1802,  by  the  terms  of  which  it  was 
stipulated  'that  all  persons  who,  on  the  27th  of  October,  1795, 
were  actual  settlers  within  the  Territory  thus  ceded,  shall  be 
confirmed  in  all  their  grants,  legally  and  fully  executed  prior 
to  that  day,  by  the  former  British  Government  of  West  Florida, 
or  by  the  Government  of  Spain.'  The  stipulations  of 
the  treaties  by  which  they  acquired  Louisiana  and  Florida 
contained  provisions  of  a  similar  nature  as  to  claims  to  land 
under  Spain  before  the  cession.  The  whole  legislation  of  Con- 
gress from  1803  to  1828,  in  relation  to  the  three  classes  of 
cases,  so  far  as  respected  Spanish  titles,  is  of  an  uniform  char- 
Congress,  under  which  the  patent  and  consequentl)'  as  against  the 
whereon  the  appellee's  title  rests.  United  States,  though  the  particu- 
was  issued;  and  to  ante  date  the  lar  tract  had  not  been  designated 
judicial  rejection  of  a  claim  so  as  by  a  survey  at  the  time  of  the 
to  render  operative  a  grant  which  cession  to  the  United  vStates;  and 
would  otherwise  be  without  effect,  the  particular  land  to  which  this 
cannot  be  sanctioned.  title  is  to  attach,  must  be  ascer- 

See  Fremont  vs.  The  United  tained  by  a  survey  made  under 
States,  17  How.  542,  where  it  was  the  authority  and  in  the  mode 
held  that:  A  grant  by  the  Mexican  provided  by  the  laws  of  the  Unileil 
Governor    of     California    of    ten       vStates. 

square  leagues  of  land    within    a  See    also    the  United  States  vs. 

certain  district  of  country  in  con^  Arredondo,  6  Peters,  691,  716; 
sideration  of  meritorious  service  Menard  vs.  Massey,  8  How.  293; 
of  the  grantee,  conferred  an  equi-  Glenn  vs.  United  vStates,  13  How. 
table  right  to  that  quantity  of  250;  DeV'ilemonte's  Case,  13  How. 
land  within  that  district,  valid  as  266. 
against  the  Mexican  Government,  16  Peters,  717. 


200  JURISDICTION    OVER  [§  131,  132 

acter  on  cases  of  a  corresponding  description.  The  rules  vary 
according  to  the  kind  of  title  set  up;  distinctions  have  been 
made  in  all  the  laws  between  pefect  or  complete  grants,  fully 
executed  or  inchoate  incomplete  ones,  where  a  right  had  been 
in  its  inception,  under  or  by  color  of  local  law  or  authority, 
but  required  some  Act  of  the  government  to  be  done  to  com- 
plete it.  Both  classes  have  been  submitted  to  the  special  trib- 
unals appointed  to  settle,  to  report  finally  or  specially  upon 
them  and  the  claimants  have  under  certain  circumstances, 
been  permitted  to  assert  their  rights  in  Court  by  various 
laws,  similar  in  their  general  character,  but  varying  in  detail 
to  meet  the  case  provided  for."  ^ 

§  13*2.  Same. — Same. — In  the  case  of  Woodruff  vs.  North 
Bloomfield  Gravel  Min.  Co.,-  Mr.  Justice  Sawyer  said:  "A  cus- 
tom or  usage  attempted  to  be  established  whereby  mining  debris 
might  be  sent  down  to  the  valleys,  devastating  the  lands  of 
private  owners,  holding  titles  in  fee  from  the  Mexican  Govern- 
ment, as  old  as  the  title  of  the  United  States,  without  first  ac- 
quiring the  right  to  do  so,  by  purchase  or  other  lawful  means 
upon  compensation  paid,  would  be  in  direct  violation  both  of 
the  laws  and  constitution  of  the  State  and  of  the  Constitution 

iSee  also  Huff  vs.  Doyle,  93  U.  the  tribunals  and  officers  of  the 
S.  546;  R^-an  vs.  Railroad  Co.,  99  United  States. 
U.  S.  387;  Quinn  vs.  Chapman,  iii  Irvin  vs.  Marshall,  20  How.  558. 
U.  S.  446:  It  was  held  that  where  The  term  "property"  in  the  treaty 
land  claimed  as  a  part  of  a  Mexi-  by  which  the  United  States  ac- 
can  grant  was,  by  the  final  survey  quired  Louisiana,  comprehends 
of  the  confirmed  grant,  ascer-  every  species  of  title,  inchoate  or 
tained  not  to  be  a  part  of  that  complete,  legal  or  equitable,  and 
grant,  it  then  became  subject  to  embraces  rights  which  lie  in  con- 
entry  and  pre-emption  for  the  tract  executory  as  w^ell  as  exe- 
first  time.  cuted. 

Newhall  vs.  Sanger,  92  U.  S.  Bryan  vs.  Kennett,  113  U.  S.  179; 
761;  Van  Reynegan  vs.  Bolton,  95  Soulard  vs.  U.  S.,  4  Pet.  511; 
U.  S.  33:  Where  it  was  held  that  Tameling  vs.  United  States  Free- 
lands  claimed  by  Mexican  grants  hold,  etc.,  93  U.  S.  644;  Delassus 
in  California  are  excluded  from  vs.  U.  S.,  9  Pet.  117;  Maxwell 
settlement  under  the  pre-emption  Land  Grant,  121  U.  S.  325;  Smith 
laws,  so  long  as  the  claims  of  the  vs.  United  States,  10  Pet.  326; 
grantees  remain  undetermined  by  Slidell  vs.  Grandjeau,  iii  U.  S.  412, 

2  Sawyer  533;    18  Fed.   Rep.  801. 


§  132,  133 J.  LAND?    AND    WATERS.  201 

of  the  United  States.  Instead  of  being  authorized  by  the 
statute,  it  would  be  in  direct  violation  of  the  statute.  It  would 
also  be  in  direct  violation  of  the  express  provisions  of  the 
statutes  defining  nuisances  already  cited." 

The  same  principle  applies  to  property  rights  in  waters  ac- 
quired under  Mexican  laws,  before  California  and  other  por- 
tions of  the  arid  region  were  acquired  by  the  United  States. 
They  are  entitled  to  complete  protection  under  our  laws.^ 

§  133.  Indian  Title  of  Occupancy.— The  right  of  the  United 
States  to  dispose  of  the  lands  thus  acquired,  as  a  part  of  the 
public  domain,  is  subject  to  the  Indian  right  of  occupancy. 
The  legal  title  to  these  lands  is  in  the  United  States,  and  is 
founded  on  the  discovery  and  grant  to  the  government,  from 
the  various  vStates  and  other  countries.  But  it  is  held  by  the 
highest  authority  in  the  land  that  a  grant  from  the  United 
States  made  before  the  extinguishment  of  the  Indian  right, 
remains  subject  to  that  right,  but  the  title  becomes  absolute 
in  the  grantee,  whenever  the  Indian  right  is  extinguished.- 

Chancellor  Kent  in  Vol.  i,  of  his  Commentaries,  p.  258, 
says  on  this  subject  of  Indian  titles:  "The  title  is  in  the 
United  States  by  the  treaty  of  peace  with  Great  Britain,  and 
by  subsequent  cessions  from  France  and  Spain^  and  by  ces- 
sions from  the  individual  States;  and  the  Indians  have  only 
a  right  of  occupancy,  and  the  United  States  possess  the  legal 
title  subject  to  that  occupancy,  and  with  an  absolute  and  exclu- 
sive right  to  extinguish  the  Indian  title  of  occupancy,  either  by 
conquest  or  purchase.  The  title  of  the  European  nations,  and 
which  passed  to  the  United  States,  to  this  immense  territorial 
empire,  was  founded  on  discovery  and  conquest;  and,  by  the 
European  customary  law  of  nations,  prior  discovery  gave  this 
title  to  the  soil ,  subject  to  the  possessory  rights  of  the  na- 
tives, and  which  occupancy  was  all  the  right  that  European 
conquerors  and  discoverers,  and  which  the  United  States,  as 

1  Lux  vs.  Haj^j,nn,  69  Cal.  255;  10  543;  lUittz  vs.  North.  Pac.  Ry.  Co., 

Pac.  Rep.  654;  .see  vSecs.  289,   292,  119  U.  vS.  55;  Thoinpsou  vs.  Doak- 

and  cases  cited;    Ilaj^ar  Rcclania-  sum,   68    Cal.    595;    Fletcher    vs. 

lion  Dist.  No.  108,  iii  U.  S.  701.  Peck,  6   Crancli,   86;    Beecher  vs. 

2Clark    vs.    vSinith,    13  Pet.    195;  Wether];y,  95  U.  S.  517. 
Johnson  vs.    Mcintosh,  8    Wheat. 


202  JURISDICTION    OVER  [§  133 

succeeding  to  their  title,  would  admit  to  reside  in  the  native 
Indians.  The  principle  is,  that  the  Indians  are  to  be  consid- 
ered merely  as  occupants,  to  be  protected  while  in  peace  in 
possession  of  their  lands,  but  to  be  deemed  incapable  of  trans- 
ferring the  absolute  title  to  any  other  than  the  sovereign  of  the 
country."  And  as  the  Indians  only  hold  the  right  of  occu- 
pancy, it  has  been  held  by  the  Supreme  Court  that  grants  of 
lands  to  private  individuals  made  by  Indian  tribes  can  not  be 
recognized  in  the  Courts  of  the  United  States,^  unless  the  pur- 
chases were  made  at  Indian  treaties,  held  by  the  authority  of, 
and  ratified  by  the  United  States.^  And  it  has  also  been  de- 
cided by  the  same  authority  that  the  Indians  have  the  unques- 
tionable right  to  the  lands  which  they  occupy,  until  it  shall 
be  extinguished  by  a  voluntary  cession  to  the  government;^ 
and  that  until  their  title  shall  have  been  extinguished,  the  In- 
dian lands  are  not  open  to  settlement.^  And,  as  a  treaty  with 
an  Indian  tribe  is,  under  the  Constitution,  the  supreme  law  of 
the  land,  the  above  principle  is  especially  true  where  lands  have 
been  reserved  for  the  use  of  an  Indian  tribe  by  treaty.  And  the 
treaty  is  notice  that  the  land  will  be  retained  by  the  Govern- 
ment for  the  use  of  the  Indians,  and  this  purpose  can  not  be 

ijohnsoii  et  al   vs.    Mcintosh,  S  United  States  vs.   Cook,    19   Wall. 

Wheat.  543;  United  States  vs.  Ril-  591;  Cherokee  Nation  vs.  Georgia, 

lieux,  14  How.  189;  United  States  5  Peters,  i;  Jackson  vs.  Hudson,  3 

vs.    Gusman,    14   How.    193;   The  Johns.  375. 

Cherokee   Tobacco,   11  Wall.  619;  4  Rector  vs.  United  States,  92  U. 

United  States   vs.    Cook,    19  Wal.  S.  698;  United  States   vs.  Carpen- 

593.  ter.  III  U.  S.  347- 

2  And  in  that  case  it  has  been  United  States  vs.  Cook,  19  Wall, 
held  to  be  good  without  any  patent  591 ,  where  the  Court  held  that 
to  the  purchaser  from  the  United  this  right  of  occupancy  was  as 
States.  sacred  as  the  title  of  the  United 

Mitchell  vs.  United  States,  9  Pet.  States  to  the  fee. 

711;    Mitchell    et    al    vs.    United  Johnson  vs.  Mcintosh,  8  Wheat. 

States,  15  Pet.  52.  543;  Wilcox  vs.  Jackson,  13  Peters, 

3  Leavenworth,  etc.,  Ry.  Co.  vs.  498;  Clark  vs.  Smith,  13  Pet.  195; 
United  States,  92  U.  S.  733;  Mis-  Spaulding  vs.  Martin,  11  Wis.  274; 
souri,  etc.,  Ry.  Co.  vs.  U.  S.,  92  U.  Dubuque  Ry.  Co.  vs.  Des  Moines 
S.  76;  United  States  vs.  Forty-  Ry.  Co.,  109  U.  S.  334;  United 
three  gallons  of  Whiskey,  93  U.  S.  States  vs.  Payne,  2  McCrary,  289. 
188;  Clark  vs.  Brown,  95  U.  S.  204; 


§  133,  134]  LANDS    AND    WATERS.  203 

defeated  by  the   action  of  any  officers  of  the  General  Land 
Office. 1 

II.  Disposal  of  Public  Lands  and  Waters. 

§  134.  Rii^ht  of  the  United  States  to  Dispose  of  its  Lands.— 

All  lands  and  waters  upon  the  public  domain  of  the  United 
States,  not  appropriated  before  they  were  acquired  by  this 
Government,  are  the  exclusive  property  of  the  United  States, 
to  be  disposed  of  to  such  persons,  at  such  times,  and  in  such 
modes,  and  b}'  such  title,  as  the  Government  b}'  its  Congress 
may  deem  most  advantageous.  This  principle  has  been 
recognized  b}^  the  Courts  from  the  very  foimdation  of  the 
Government.-  The  Government  of  the  United  States  has  a 
perfect  title  to  the  public  land  and  an  absolute  and  unqualified 
right  of  disposal.  Neither  State  nor  Territorial  legislation 
can,  in  any  manner,  modify  or  affect  the  right  which  the 
Government  has  to  the  primary  disposal  of  the  public  land.^ 
And  we  have  seen  that  even  the  Indian  lands  may  be  sold 
before  the  extinguishment  of  their  right  to  occupy  the  same, 
but  subject  to  that  right,  and  the  legal  title  becomes  absolute 
in  the  grantee,  whenever  the  Indian  right  is  extinguished.* 
The  possession  when  abandoned  by  the  Indians,  attaches 
itself  to  the  fee  without  further  grant.  However  it  is  true, 
that  before  the  abandonment  by  the  Indians,  the  grantee  only 
takes  the  naked  fee,  and  can  not  disturb  the  occupancy  of  the 
Indians;  that  occupancy  can  only  be  interfered  with  or  deter- 
mined by  the  United  States. ■'•  The  power  of  the  Government 
to  dispose  of  the  public  domain  cannot  be  interfered  with,  nor 
its  exercise  embarrassed,  by  any  State  or  Territorial  legisla- 

1  United  States  vs.  Carpenter,  109  3  Irvine  vs.    Marshall,    20  How. 

U.  S.  347.  561 ;  Union  M.  &  M.  Co.  vs.  Ferris, 

2lrvine  vs.   Marshall,    20   How.  2  Saw.  176;  Vansickle  vs.  Haines, 

558;  Reversing  i  Minn.  340;  Buttz  7  Nev.  249. 

vs.  Northern  Pac.  Ry.  Co.,  119  U.  ^See  previous  section  and  cases 

S.  55;  Beecher  vs.  Wetherby,  95  U.  cited. 

S.  517;  Johnson  vs.   M'Intosh,   8  ■''Becher  vs.  Wetherby,   95    U.  S. 

Wheat.  543;  United  Statesvs. Cook,  517;    Johnson    vs.  Mcintosh,  8 

19  Wall.  591;  Clark  vs.  Smith,  13  Wheat.,  543;  U.    S.    vs.    Cook,    19 

Pet.  195;  Veeder  vs.  Guppy,  3  Wis.  Wall.  591. 
502;    Portage  City,  8  Opin.    Atty. 
Gen.   262-269. 


204  JURISDICTION    OVER  [§  134,  135 

tion.^  This  right  has  been  uniformly  reserved  by  solemn 
compacts  upon  the  admission  of  new  States,  and  has  been 
recognized  and  scrupulously^  respected  b)"  the  Courts  of 
sovereign  States  within  which  large  portions  of  the  public 
lands  have  been  situated  and  within  which  much  of  those 
lands  is  still  remaining.  Article  IV,  Section  3  Clause  2,  of 
the  Constitution  of  the  United  States,  reads  as  follows:  "Con- 
gress shall  have  the  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  Territory  or  other  prop- 
ert}'  of  the  United  States."  And  so,  as  the  complete  authority 
to  dispose  of  the  public  domain  is  in  Congress,  under  the 
Constitution,  it  follows  that  no  appropriation  of  lands  can  be 
made  for  anj^  purpose  but  by  the  authority  of  the  Act  of 
Congress. 2  In  the  case  of  Union  Mill  and  Mining  Company 
vs.  Ferris,'^  the  Court  held,  that  the  Government  of  the  United 
States  has  a  perfect  title  to  the  public  land  and  an  absolute 
and  unqualified  right  of  disposal.  Neither  State  nor  Terri- 
torial legislation  can,  in  any  manner,  modif)^,  or  affect  the 
right  which  the  Government  has  to  the  primary  disposal  of 
the  public  land,  and  also  that,  a  stream  of  running  water  is 
part  and  parcel  of  the  land  through  which  it  flows,  insepar- 
ably annexed  to  the  soil,  and  the  use  of  it  as  an  incident  to 
the  soil  passes  to  the  patentee  of  the  land. 

§  135.  OAvnership  of  Soil  and  Water  Disthigiiished. — It  is 

not  our  purpose  in  this  work  to  discuss  at  length  all  the 
methods  by  which  the  Government  disposes  of  its  lands,  only 
so  far  as  to  show  how  the  waters  of  rivers,  streams,  lakes  and 
ponds  which  are  upon  these  lands  and  necessaril}-  a  part 
thereof,  pass  from  the  ownership  of  the  United  States  to  other 

llrvine   vs.    Marshall,    20   How.  American   Insurance  Co.  vs.  Car- 

558;  Reichert  vs.  Felps,   13  Wall.  ter,  i  Pet.   511;    United  States  vs. 

92;    Jourdan  vs.  Barrett,   4   How.  Rogers,  4  How.  567;    Mackey  vs. 

169.  Coxe,  18  How.  100;  Beal  vs.   New 

2 United  vStates  vs.  Fitzgerald,  15  Mexico,    16   Wall.    535;     Maxwell 

Pet.  407;  Gibson  vs.  Chouteau,   13  Land  Grant  Co.,   121,   U.  S.    325; 

Wall.    92;   Jorndan   vs.  Barrett;  4  Tameling  vs.    United  States,  etc.. 

How.  169;  United  States  vs.  Gra-  Co.,  93  U.  S.  644. 

tiot,   14    Pet.  526;    McCulloch   vs.  ^  2  Saw.  176. 
State  of  Maryland,  4  Wheat.  316; 


§  135].  LANDS    AND    WATERS.  205 

and  private  hands.  And  we  think  that  it  will  not  be  out  of 
place,  at  this  point,  to  briefly  discuss  the  different  methods 
the  Government  has  of  disposing  of  its  public  lands,  bearing 
in  mind  that  a  grant  of  the  soil  may  also  carry  with  it  certain 
interests  in  the  waters  upon  and  adjoining  the  lands  granted. 
But  it  must  be  borne  in  mind  that  it  is  a  well  settled  principle 
in  the  arid  region  that  ownership  in  the  soil  is  not  necessary 
to  an  ownership  in  the  waters  ruuning  over  and  adjoining 
the  land.  Hence  it  follows,  that  a  grant  of  land  through 
which  a  stream  runs  or  adjoins,  may  or  may  not  pass  any  in- 
terest in  the  waters  of  the  stream.  In  fact  before  the  title  to 
a  tract  of  land  passes  from  the  Government  to  private  par- 
ties all  of  the  waters  that  natural!}'  ran  over  the  tract  may 
have  been  appropriated  by  other  parties  and  diverted  from 
their  natural  course  and  conducted  to  other  tracts,  perhaps 
miles  away;  and  the  grantee  of  the  lands  in  question  is  com- 
pelled to  look  to  other  streams,  on  other  lands,  for  his  supply 
of  water.  Under  the  decisions  upon  this  subject  the  law  is 
settled  to  mean  this:  When  a  grantee  of  the  United  States 
obtains  title  to  a  tract  of  land  through  or  adjoining  which  a 
stream  of  water  runs,  and  the  waters  of  the  stream  have  not 
hitherto  been  appropriated,  the  grantee's  patent  is  not  subject 
to  any  possible  appropriation  which  may  be  subsequently 
made  by  another  party,  unless  the  State  or  Territory  in  which 
the  land  is  located  has,  by  statutory  enactments,  abolished 
the  common  law  theory  of  riparian  rights.^  If  the  land 
granted  before  any  appropriation  has  been  made  is  upon  the 
public  domain,  within  the  boundaries  of  a  State,  the  riparian 
rights  of  the  grantee  must  be  determined  and  regulated 
wholly  by  the  municipal  law  of  the  State,  over  which  Congress 
has  no  power  whatever  to  legislate.  And  unlCvSS  there  is  a 
State  law  upon  the  subject  abolishing  or  modifying  the  com- 
mon law  of  riparian  rights  within  that  State  subsequent  ap- 
propriators  of  the  waters  of  the  stream  must  take  the  water 
subject  to  all  of  those  rights  of  the  riparian  grantee.'-^    But  u})on 

ISee  Part  vSecond.  dell  vs.  Hall,  3  Nev.  507;  Opliir  S. 

2Lytle  Creek  W.  Co.  vs.  Perdue,  M.  Co.  vs.  Carpenter,  4  Nev.  534; 

65  Cal.  447;  2  Pac.  Rep.  732;   Lob-  Robinson  vs.  Imperial  S.  M,  Co.. 

del  vs.  Simpson,  2  Nev.  274;  Lob-  5  Nev.  44;  Covington  vs.  Becker,  5 


206  JURISDICTION   OVER  [§  135,  136 

the  other  hand,  if  the  waters  of  a  stream  upon  any  part  of  the 
public  domain,  whether  within  the  boundaries  of  a  State  or 
not,  have  been  appropriated  prior  to  the  existence  of  any 
rights  of  a  subsequent  riparian  grantee  of  the  Government, 
then  the  riparian  rights  of  the  grantee  are  subject  to  the  rights 
of  the  appropriators.^  And  in  States  which  have  abolished 
the  common  law  theories  of  riparian  rights,  the  person 
who  first  actually  appropriates,  diverts  and  uses  the  waters 
from  any  natural  stream  upon  the  public  domain,  for  some 
beneficial  purpose,  has  a  pefect  title  to  the  same,  and  that  too 
whether  the  appropriation  is  made  prior  or  subsequent  to  any 
existing  rights  of  a  grantee  of  the  Government.  But  these 
questions  will  be  more  thoroughly  discussed  in  a  future  por- 
tion of  the  volume. 2 

§136.  How  tlie  OoYeriimeiit  disposes  of  its  Lands — 
Special  Reservations. — The  United  States  has  two  general 
methods  of  disposing  of  its  public  lands.  First,  by  special 
reservations,  for  the  use  of  the  Government,  and  by  donations, 
the  basis  of  the  title  to  the  land  in  this  case  being  a  Congres- 
sional Act;  and  second,  by  regular  disposal  through  the 
General  L,and  OSice,  the  basis  being  a  Government  patent 
issued  under  the  authority  of  the  general  land  laws. 

Bearing  in  mind  the  definition  of  the  term  "  public  land  " 
as  laid  down  in  Newhall  vs.  Sanger, ^  that  the  words  are  used 
to  describe  only  such  lands  as  are  subject  to  sale  or  other  dis- 
posal, and  do  not  embrace  tracts  after  having  been  reserved 
by  competent  authority  for  any  purpose  or  in  any  manner, 
we  can  see  how  a  reservation  of  such  lands  for  a  definite  pur- 
pose can  be  termed  a  disposal  of  them.       Under  the  Constitu- 

Nev.  281;  Hobart  vs.  Ford,  6  Nev.  Tieleke,  2  Mont.  59;  Caruthers  vs. 

77;  Vansickle  vs.  Haines,  7  Nev.  Pemberton,  i  Mont,  iii;  Hagarvs. 

249;    Barnes  vs.   Sabron,   10   Nev.  Reclamation  District  No.  108,   iii 

217;  Sboemakervs.  Hatch,  13 Nev.  U.  S.  701. 

261;  Dick  vs.  Caldwell,  14  Nev.  167;  iSee  Chapter  VII,  Sections  191- 

Straitvs.  Brown,  16  Nev.  317;  Cra-  207  and  authorities  cited. 

mervs   Randall,  2  Utah  24S;  Mun-  2 See  Chapters  VII  and  VIII  and 

roe  vs.  Ivie,  2  Utah  535;  Fabian  vs.  authoi-ities  cited. 

Colins,    3   Mont.   215;    Barkley  vs  =^92  U.  S.  761. 


§  136].  LANDS   AND    WATERS.  207 

tion  as  we  have  seen,  no  appropriation  of  the  public  lands 
can  be  made  for  any  purpose  but  by  authority  of  an  Act  of 
Congress.^ 

Appropriation  of  land  by  the  government  is  nothing  more 
or  less  than  setting  it  aside  for  some  particular  use.  So, 
whenever  a  tract  of  land  shall  have  once  been  legally  appro- 
priated to  any  purpose  of  the  Government,  from  that  moment 
the  land  thus  appropriated  becomes  severed  from  the  mass  of 
public  lands;  and  no  subsequent  law  or  proclamation  or 
sale  would  be  construed  to  embrace  it  or  to  operate  upon  it, 
although  no  reservation  were  made  of  it.^  And  the  erection 
of  fortifications,  and  the  selection  of  sites  for  military  and 
civil  purposes,  are  authorized  by  the  Constitution  and  Acts 
of  Congress,  and  the  power  to  make  the  selection  is  usually 
committed  to  the  President  by  Congress,  and  when  made  has 
the  same  legal  validity  as  if  it  had  been  done  by  express 
enactment.  Also  as  the  President  speaks  and  acts  through 
the  heads  of  the  several  departments  in  relation  to  subjects 
which  appertain  to  their  respective  duties,  a  reservation  of 
lands  made  at  the  request  of  a  secretary,  for  purposes  in  his 
department,  must  be  considered  as  made  by  the  President  of 
the  United  States,  within  the  terms  of  the  respective  Acts  of 
Congress.-'^    And  if  any  patents  are  issued,  purporting  to  con- 

lAnte    Section    134    and    cases  United   States   vs.   Gear,   3  How 

cited;  Art.   4,    Sec.    3,    Clause    2,  132. 
Constitution  of  the  United  States.  3  Wilcox  vs.  Jackson,  13  Pet.  498, 

United  States  vs.  Fitzgerald,  15  where  it  was  held  that:  An  ap- 
Pet.  407,  where  it  was  held  that  if  propriation  of  land  by  the  Govern- 
a  tract  of  land  has  been  severed  nient  is  nothing  more  or  less  than 
from  the  public  domain,  by  a  setting  it  apart  for  some  particular 
legal  appropriation  of  it,  for  any  use.  In  the  case  before  the  Court 
public  purpose,  no  right  can  be  there  has  been  an  appropriation  of 
acquired  to  it  by  cultivation  or  the  land  not  only  in  fact,  but  in 
possession;  because  the  land  thus  law,  for  a  military  post,  for  an  In- 
severed  is  not  subject  to  the  pre-  dian  agency  and  for  the  erection  of 
emption  law.  a  light  house.      And  also  that  by 

2  Wilcox  vs.  Jackson,  13  Pet.  49S  ;  the  Act  of  Congress  of  1830,  when- 
United  States  vs.  Railroad  Bridge,  soever  a  tract  of  land  shall  have 
6  Mcl^ean,  527;  United  States  vs.  once  been  legally  api)ropriated  to 
Fitzgerald,  15  Pet.  421;  City  of  any  purpose  from  that  moment 
Mobile    vs.    Kslava,    16    Pet.     250;  the    lan<l    tlius    appropriated  be. 


208  JURISDICTION   OVER  [§  136,  137 

vey  any  lands  which  have  formerlj^  been  reserved  by  com- 
petent authority'  for  any  purpose  whatever,  it  follows  that  the 
patents  are  inoperative  to  convey  any  title,  and  are  absolutely 
void.^ 

The  Courts  have  settled  by  a  long  line  of  decisions  that 
the  issuing  of  a  patent  for  public  lands  is  a  ministerial  act, 
which  must  be  performed  according  to  law,  and  that  where  it 
has  been  issued  without  authority  of  law,  whether  fraud- 
ulently or  not,  is  void.^ 

§  137.  Donations  for  Internal  Improvement. — Also  land  is 
granted  to  individuals,  corporations.  States  and  Territories, 
for  the  purpose  of  internal  improvement,  most  frequently  to 
aid  in  the  construction  of  a  railroad  to  be  built  between  certain 
places,  by  a  certain  company  named  in  the  grant.  But  as 
every  land  grant  is  made  by  an  Act  of  Congress  the  nature 
and  terms  of  any  particular  grant  must  be  gathered  from  the 
language  of  the  Act  itself,  as  that  Act,  by  which  it  is  made,  is 
a  law.-'^     There  are  two  ways  of  granting  land  for  this  purpose. 

comes   severed  from   the   mass  of  l  Ibid. 

public  lands;  and  no  subsequent  2  Stoddard  vs.  Chambers,  2  How. 
law  or  proclamation  or  sale  would  2S4;  Minter  vs.  Crommelin,  18 
be  construed  to  embrace  it,  or  to  How.  87;  Brush  vs.  Ware,  15  Pet. 
operate  upon  it,  although  no  other  93;  Danforth  vs.  Wear,  9  Wheat, 
resei-vation  were  made  of  it.  673;  Patterson  vs.  Jenks,  2  Pet. 
By  the  Act  of  Congress  of  1830,  235;  Polk  vs.  Wendall,  9  Cranch, 
all  lands  are  exempted  from  pre-  98;  Hoofnagle  vs.  Anderson,  7 
emption  which  are  reserved  from  Wheat.  214;  Cunningham  vs.  Ash- 
sale  by  order  of  the  President  of  ley,  14  How.  389;  Lindsey  vs.  Mil- 
the  United  States.  The  President  ler,  6  Pet.  674;  Brown  vs.  Clem- 
speaks  and  acts  through  the  heads  ents,  3  How.  667;  Lodiga  vs.  Ro- 
of the  several  departments  in  re-  land,  2  How.  581;  Lindsey  vs. 
lation  to  subjects  which  appertain  Hawes,  2  Black,  558;  Minnesota 
to  their  respective  duties.  Mili-  vs.  Bachelder,  i  Wall.  107. 
tary  posts  belong  to  the  War  ^  See  Lester's  Land  Laws  of  the 
Department.  A  reservation  of  United  States,  2nd  Edition.  Kan. 
lands  made  at  the  request  of  Pac.  Ry.  Co.  vs.  Dunmeyer,  113  U. 
the  Secretary  of  War  for  purposes  S.  629;  Missouri  Pacific  Ry.  Co.  vs. 
of  his  department  must  be  con-  Kansas  Pac.  Ry.  Co.,  97  United 
strued  as  made  by  the  President  of  States  491 ;  St.  Paul,  etc ,  Ry.  Co. vs. 
the  United  States  within  the  terms  Greenhalgh,  26  Fed.  Rep.  563; 
of  the  Act  of  Congress.  Hall  vs.  Russell,  loi  U.  S.  503. 


§  137,  138.] 


LANDS    AND    WATERS. 


209 


One  is  direct  to  the  company,^  and  the  other  is  made  to  a 
State  in  aid  of  a- railroad;  and  where  this  is  done  the  State 
acquires  nothing  under  the  Act  of  Congress  more  than  a  mere 
naked  trust,  with  power  to  transfer  the  lands  therein  specified 
to  the  company  when  it  has  complied  with  the  necessary  re- 
quirements or  to  apply  the  proceeds  from  their  sale  to  the  use 
and  purpose  prescribed  in  the  Act.^  But  in  either  case  the 
building  of  the  road  is  the  consideration  for  the  grant.-^ 

§  138.  Same. — Coiitinuetl.— Congressional  grants  of  land 
have  also  been  made  for  other  purposes,  such  as  the  improve- 
ment of  river  navigation,'*  the  building  of  wagon  roads,"  and  the 
swamp  land  grants  to  the  several  States,  to  enable  those  States  to 
construct  levees  and  drains,  and  reclaim  swamp  and  overflowed 
lands. ^     By  this  method   Congress  has  granted  vast  tracts  of 


As  to  grant  ht  praesenti,  see 
Wright  vs.  Roseberrj',  I2i  U.  S. 
4S8;  Martin  vs.  Marks,  97  U.  S. 
345;  Hannibal  Ry.  Co.  vs.  Smith 
9  Wall.  95;  Winona  etc.  Ry  Co.  vs. 
Barney,  113  U.  S.  618. 

1  Brewster  vs.  K.  C.  L.  &  S.  K.  R. 
Co.,  25  Fed.  Rep.  243;  Missouri 
Pacific  Ry.  Co.  vs.  Kan.  Pac.  Ry. 
Co.,  97  U.  S.  491;  Kansas  Pac.  Ry. 
Co.  vs.  Dunmeyer,  113  U.  S.  629. 

^Rice  vs.  Minn.  etc.  Ry.  Co.,  i 
Black  360;  Wolsey  vs.  Chapman, 
loi  U.  S.  755;  Van  Wyck  vs. 
Knevals,  106  U.  S.  360;  Hannibal 
etc.  Ry.  Co.  vs.  Smith,  9  Wall.  95; 
Schulenberg  vs.  Harriman,  21 
Wall.  60;  Grinell  vs.  Chicago  etc. 
Ry.  Co.,  103  U.  S.  739;  Cedar 
Rapids  etc.  Ry.  Co.  vs.  Court- 
wright,  21  Wall.  310;  Williams  vs. 
Baker,  17  Wall.  144;  K.  C.  Ry.  Co. 
vs.  Atty.  Gen.,  118  U.  S.  682; 
Leavenworth  etc.  Ry.  Co.  vs. 
United  States,  92  U.  S.  733;  Litch- 
field vs.  Webster  Co.,  loi  U.  S. 
773;  Miller  vs.  Swann,  89  Ala. 
631. 


3  Brewster  vs.  K.  C.  Rj'.  Co.,  2 
Fed.  Rep.  243. 

4  Woolcott  vs.  D.  M.  Co.,  5  Wall. 
681;  Dubuqne  etc.  Ry.  Co.  vs. 
Litchfield,  23  How.  66. 

5  Penga  vs.  Munz,  29  Fed.  Rep. 
830;  Cal.  &  Oreg.  L.  Co.  vs.  Munz, 
29  Fed.  Rep.  837. 

tj  United  vStates  Rev.  Stat,  Sec. 
2479,  2480;  Sacramento  Sav.  Bank 
vs.  Hymes,  50  Cal.  195;  Cragiu  vs. 
Powell,  128  U.  S.  691;  Gormley  vs. 
Uthe,  116  111.  643;  133  U.  S.  655; 
Hannibal  etc.  Ry.  Co.  vs.  Smith,  9 
Wall.  95. 

The  grant  being  one  in  prae- 
senti, the  interest  of  the  State  in 
the  lands  cannot  be  impaired  by 
the  delay  or  the  refusal  of  the  Sec- 
retary to  have  the  lists  and  plats 
made.  San.  Fran.  Sav.  Unions  vs. 
Irwin,  28  P'^ed.  Rep.  708;  Owens 
vs.  Jackson,  9  Cal.  322;  Summers 
vs.  Dickinson,  9  Cal.  554;  French 
vs.  P^yan,  93  U.  S.  169,  Gaines  vs. 
Thompson,  7  Wall.  347;  Cox  vs. 
McGarrahan,  9  Wall.  298;  Litch- 
field vs.  Richards,  9  Wall.  575. 


210  JURISDICTION    OVER  [§  138,  139 

lands  for  the  purpose  of  aiding  in  the  construction  of  railroads 
and  other  internal  improvements,  but  in  making  these  dona- 
tions Congress  can  not  be  supposed  to  exercise  its  liberality 
to  the  prejudice  of  pre-existing  rights,  which,  though  often 
times  imperfect,  were  still  meritorious,  and  had  just  claims  to 
legislative  protection;  and  therefore,  where  any  homestead, 
pre-emption  rights  or  claims  in  and  to  waters  of  natural 
streams  and  lakes  or  other  similar  rights  have  attached  prior 
to  the  grant,  they  will  be  recognized  and  protected  in  pursu- 
ance of  the  constant  policy  of  the  government  to  protect  those 
who,  in  good  faith,  have  settled  upon  and  improved  any  por- 
tion of  the  public  lands.  "^ 

§  139.  Same — School  Lands. — Congress,  by  several  Acts, 
passed  at  various  times,  has  granted  to  certain  States  and 
Territories  a  portion  of  the  public  lands  within  their  respective 
boundaries  for  the  use  of  the  public  schools  of  those  States  or 
Territories,  respectively.  The  portion  granted  has  most  often 
been  the  i6th  section  of  each  township,^  although  in  many  of 
those  States  and  Territories  formed  out  of  the  arid  region  both 
the  1 6th  and  36th  sections  have  been  granted. ^  And  it  is  in  all 
cases  provided  where  sections  sixteen  and  thirty-six,  or  either 
of  them,  are  occupied  by  actual  settlers  prior  to  the  survey  of 
such  lands,  that  other  lands  may  be  located  to  an  equal  amount, 

1  Lamb  vs.  Davenport,   18  Wall-  Missouri,  18  How.  126;  Dickens  vs. 

^13;  Rector  vs.  Gibbon,  iii  U.  S-  Mahana,  2  How.  276;   Beecher  vs. 

276;  U.  S.  vs.  Missouri  Ry.  Co.,  37  Weatlierby,  95   U.  S.   517;  Kissell 

Fed.  Rep.  68;  Forbes  vs.  Gracey,  vs.   St.    Louis    Pub.    Schools,    18 

94  U.    S.   762;    Wolcott   vs.    Des  How.  19;  St.  Louis  Public  Schools 

Moines  Co.,  5  Wall.  6S1;  Williams  vs.   Walker,    9  Wall.   282;   Act  of 

vs.  Baker,  17  Wall.  144.  March  3rd,  1803,  2  Stat,  at  L.  229; 

2Upon   their   admission   to    the  Gaines  vs.  Nickolson,  9  How.  356. 

Union,  Congress   granted  to  each  3  Rev.  Stat.    U.    S.,    Sees.    1946- 

of  the  States  of  Illinois,  Michigan,  1947,  and  citations   as  to  dates  of 

Missouri,    Ohio,    Wisconsin     and  passage  of  Acts;  Ferrj^  vs.  Street, 

others    the    .sixteenth    section   of  4  Utah,  521;  Ivanhoe   Mining  Co. 

each  township  for  school  purposes.  vs.  Keystone  Con.  M.  Co.,   102  U. 

Springfield  vs.  Quick,  22  How.  S.  167;  Natoma  Water  etc.  Co.  vs. 

56;   Vincennes  Universit}-  vs.  In-  Bugbey,  96  U.  S.  165;  Heydenfeld 

diana,    14   How.    268;    Cooper  vs.  vs.  Daney  Gold  etc.  M.  Co.,  93  U. 

Roberts,  18  How.    173;    Hendrick  S.  634. 
vs.  Hughes,  15  Wall.  123;  Ham  vs. 


§  139,  140].  LANDS    AND   WATERS.  211 

in  lieu  of  the  sections  so  occupied.^  However,  all  selections 
of  lieu  lands  made  by  a  State  upon  unsurveyed  public  lands 
of  the  United  States  are  held  to  be  utterly  void.^  It  is 
held  that  the  title  to  the  lands  granted  for  the  use  of  the  pub- 
lic schools  vests  in  the  State  at  once  upon  the  Act  taking 
effect,  where  the  lands  are  surveyed,  or  where  they  are 
bounded  or  ascertained,^  as  effectually  as  if  a  patent  had  been 
issued;  and  the  title  so  transferred  relates  back  to  the  date  of 
the  selection  of  the  lands  b}'-  the  State,  if  they  are  lieu  lands, 
and  a  patent  is  unnecessary.'^  And  hence,  after  lands  have 
been  selected  by  the  State  as  indemnity  school  lands,  and 
certified  or  listed  as  such  by  the  proper  officers  of  the  United 
States,  there  can  be  no  right  of  pre-emption  to  such  lands.^ 
No  subsequent  law  of  Congress  authorizing  a  sale  of  public 
lands  can  be  construed  to  embrace  such  school  lands. ^  How- 
ever, the  title  being  vested  in  the  respective  States  they  can 
sell  and  give  a  perfect  title  to  the  school  lands,  and  their 
title  is  conclusive  of  a  regular  and  valid  sale." 

It  is  also  held  by  the  Supreme  Court  of  the  United  States 
that  by  the  settled  policy  of  the  General  Government,  in  these 
grants  for  school  purposes,  mineral  grants  are  excluded.^ 

§140.  Town  Site  Law. — There  are  three  methods  by  means 

of  which  public  lands  are  disposed  of  for  town  site  purposes: 

First — The    President  is   authorized   to   reserve  from   the 

1  Rev.    Stat.    U.    S.,    vSec.    1947.  the  party  which  first  commences 

Hedrick  vs.  Hughes,  15  Wall.  123;  the  proceedings  required  to  obtain 

Ham  vs.   Missouri,    18  How.    123;  the  title,  if  they  are   followed  up 

Natoma  W.  Co.  vs.  Bugbey,  96  U.  to  the  final  act  for   its  transfer,  is 

S.  165;  Heydenfeldvs.  Daney  Gold  considered    to    have    priority    of 

etc.  M.  Co.,  93  U.  S.  634;    Gaines  right.     The  rule  prevails  in  such 

vs.  Nickolson,  9  How.  356;  Bullock  cases,  first  in  time,  first  in  right, 

vs.  Rouse,  81   Cal.  590;    McCreery  Howell  vs.  Slauson,  83  Cal.  539. 

vs.  Haskell,  119  U.  S.  327;  Howell  f'Dorard  vs.    Martin,    120   U.  S. 

vs.  Slauson,  83  Cal.  539;    Hanible-  366. 

ton  vs.  Duhain,  71  Cal.  136.  f>Beecher  vs.  Wetherby,  95  U.  S. 

2 United   States  vs.    Cartner,    38  517. 

Fed.  Rep.  i.  7  Cooper  vs.  Roberts,    iS    How. 

3  Ferry  vs.  Street,  4  Utah,  521.  173. 

4  McCreery  vs.  Haskell,  119  U.  SivanhoeM.  Co.  vs.  Keystone 
S.  327,  where  it  was  held  that  as  Con.  M.  Co.,  102  U.  S.  167;  vS!ii_t- 
between  the  State  and  the  settler  man  vs.  Bruck,  93  U.  S.  20j. 


212  JURISDICTION    OVER  .  [§  140 

public  lands,  whether  surveyed  or  unsurveyed,  lands  for  town 
site  purposes,  on  the  shores  of  harbors,  at  the  junctions  of 
rivers,  at  important  portages,  or  any  natural  or  prospective 
centres  of  population.  Provisions  are  made  for  the  survey  of 
such  lands  selected  into  lots  of  suitable  size,  for  the  appraise- 
ment of  the  same  at  their  cash  valuation,  their  sale  at  public 
out-cry  to  the  highest  bidder,  and  for  the  disposal  of  unsold 
lots  at  public  sale  or  private  entry,  at  not  less  than  their  ap- 
praised value.  All  such  sales  are  to  be  conducted  by  the 
Register  and  Receiver  of  the  L-and  Office,  in  that  district, 
in  accordance  with  the  instructions  of  the  General  Ivand 
Office. 1. 

Second — In  case  parties  have  already  founded,  or  may 
desire  to  found,  a  city  or  town  on  the  public  lands  they  may 
cause  to  be  filed  with  the  Recorder  of  the  County  in  which 
the  same  is  situated  a  plat  for  not  exceeding  six  hundred  and 
fort}'  acres,  describing  its  exterior  boundaries  according  to 
the  lines  of  the  public  sur\^eys,  if  the  lands  have  been  sur- 
veyed; also  giving  the  name  of  such  city  or  town,  and  ex- 
hibiting its  streets,  squares,  etc.,  with  measurements,  and  area 
of  each  municipal  subdivision,  the  lots  in  which  shall  not 
exceed  four  thousand  two  hundred  square  feet,  with  a  state- 
ment of  the  extent  and  general  character  of  the  improve- 
ments; such  a  map  and  statement  to  be  verified  under  oath, 
and  a  verified  transcript  of  the  same,  within  thirty  days  after 
its  filing,  must  be  transmitted  to  the  General  Land  Office, 
accompanied  by  the  testimony  of  two  witnesses  that  such 
city  or  town  has  been  established  in  good  faith,  and  when 
the  premises  are  within  the  limits  of  an  organized  land  dis- 
trict a  similar  statement  shall  be  filed  with  the  Register  and 
Receiver  thereof.  The  President  is  then  authorized  to  cause 
the  lots  embraced  within  the  limits  of  such  city  or  town  to 
be  offered  at  public  sale  to  the  highest  bidder;  and  such  lots 
that  may  not  be  thus  disposed  of  shall  thereafter  be  liable  to 
private  entry,  at  such  price  as  the  Secretary  of  the  Interior 
may  order  from  time  to  time.     When  such  cities  or  towns  are 

1  United  States  Rev.  Stat.   2380,       Stat.    557,    558;    2   Copp's    Public 
2381,     Act     of    March   3rd,    1863;       Land  Laws,  1007,   loii. 
Gould  and  Tucker's  notes  on  Rev. 


§   1-40].  LANDS    AND    WATERS.  213 

established  upon  iiusurveyed  lands,  after  the  extension  there- 
to of  the  public  surveys,  the  extension  limits  of  the  premises 
may  be  adjusted  according  to  those  lines,  where  it  can  be 
done  without  interference  with  rights  which  may  be  vested 
by  sale.  Patents  for  all  lands  so  disposed  of  shall  issue  -as  in 
ordinary  cases. ^ 

Third. — Whenever  any  portion  of  the  public  lands  have 
been  already  or  may  be  settled  upon  and  occupied  as  a  town 
site,  not  subject  to  entry  under  the  agricultural  pre-emption 
laws,  it  is  lawful  for  the  corporate  authorities  thereof,  or  if  it 
be  unincorporated,  for  the  Judge  of  the  County  Court  of  the 
county,  to  enter  at  the  proper  land  office,  and  at  the  mini- 
mum price,  the  land  so  settled  and  occupied  "  in  trust  for  the 
several  use  and  benefit  of  the  inhabitants  thereof,  according  to 
their  respective  interest;"  the  execution  of  this  trust,  as  to  the 
disposal  of  such  lots  in  such  town,  and  the  proceeds  of  the  sales 
thereof,  is  to  be  conducted  under  the  regulations  as  may  be 
prescribed  by  the  legislative  authority  of  the  State  or  Territory 
in  which  the  town  may  be  situated.^  In  no  case,  how- 
ever, may  town  sites  be,  located  or  any  title  acquired  in  that 
manner  upon  or  to  an}-  known  mineral  lands,  or  to  any  valid 
mining  claim  or  to  the  prejudice  of  any  vested  rights  to  water 
that  naturally    flows  over    or  adjoins   the   premises.-^     Other 

1  United  States  Rev.   Stat.  2382-  SDeffeuljach  vs.  Ilawkes,  115  U. 

2386,  Actof  July  6th,  1S64;  2  Copp's       S.  392. 

Public  Land  Laws,  loii.  But     in      vSparks      vs.      Pierce, 

^United    States    Rev.    vSt.  Sees  115  U.  S.  408,   where  it  was  held 

2387,  2394,  Act  of  Mar.  2nd,  1867;  that  a  person  who  makes  improve- 
2  Copp's  Public  Land  Laws,  1012;  ments  upon  public  lands,  knowing 
Stringfellow  vs.  Cain,  98  U.  S.  610;  that  he  has  no  title,  and  that  the 
Burbank  vs.  P^llis,  7  Neb.  156;  land  is  open  to  exploration  and 
Ashby  vs.  Hall,  119  U.  S.  526;  sale  for  its  minerals,  and  makes 
Townsend  vs.  Little,  109  U.  S.  504;  no  effort  to  secure  the  title  to  it  as 
Clark  vs.  Titus,  (Ariz.)  11  Pac.  Rep.  such  under  laws  of  Congress,  or  a 
312;  Pratt  vs.  Young,  I  Utah  347;  right  of  posses.sion  under  the  local 
Cain  vs.  Young,  i  Utah  361;  Lech-  customs  and  rules  of  miners,  has 
ler  vs.  Chapin,  12  Nev.  65;  Singer  no  claim  to  compensation  for  his 
Mfg  Co.  vs.  Tillman,  (Ariz.)  21  improvements  as  an  adverse 
Pac.  Rep.  818;  Hussy  vs.  Smith,  holder  in  good  faith,  wlien  such 
99  U.  S.  20;  Reversing,  i  Utah  129;  sale  is  made  to  another  and  the 
Taylor  vs.  Winona  etc.  Ry.  Co.,  title  is  passed  to  him  l)y  a  i)atent 
45  Minn.   66;  Lamm   vs.   Chicago  of  the  United  vStates. 

etc.  Ry.  Co.,  45  Minn.  71.  Witherspoon  vs.  Duncan,  4  Wall. 


214  JTTRISDICTION    OVER  [§  140,  141 

miscellaneous  grants  have  been  made  at  various  times,  and 
for  different  objects,  but  enough  has  been  said  to  show  how 
the  government  disposes  of  its  lands  by  this  means. ^ 

§141.  Pre-Existing  Water  Rights  not  Effected  by  Con- 
gressional (jrants.— As  has  been  stated,  no  pre-existing 
rights  are  effected  by  these  Congressional  grants  of  lands.- 
This  is  as  true  of  pre-existing  rights  to  waters  that  naturally 
flow  over  or  adjoin  these  lands  as  it  is  of  rights  to  the  soil, 
whether  there  are  any  special  reservations  of  these  water 
rights  in  the  grant  itself  or  not.  This  law  is  based  upon  a 
common  principle  of  justice,  and  in  pursuance  of  the  constant 
policy  of  the  government,  through  Congress  and  the  Courts, 
to  protect  any  bona  fide  rights  which  have  attached  prior  to 
grant,  of  those  who  have  in  good  faith  settled  upon  and 
improved  any  portion  of  the  public  domain. ^  And  it  is  gener- 
ally provided  that  where  lands  along  the  line  of  a  proposed 
railway  are  already  taken  up  the  railway  company  may  take 
other  lands  of  the  public  domain  as  indemnitj^^ 

But  whether  these  rights  are  provided  for  in  the  grant  or 
not   it   is   the  established  doctrine  of  the  courts  that  water 

2i8;  Steel  vs.  St.  Louis  Smelting  Ry.  Cas.   215;   P'orbes   vs.  Gracey, 

Co.,     106    U.    8.    447;    Broder    vs.  94  U.  S.  762;  Lamb  vs.  Davenport, 

Natoma  Water  Co.,  loi  U.  S.  274;  18  Wall.  313;  Jennison  vs.  Kirk,  98 

Atchison   vs.    Peterson,    20   Wall.  U.  S.  240;  Rector  vs.    Gibbon,  iii 

507;  Basey  vs.  Gallagher,  20  Wall.  U.  S.  276;    Sparrow   vs.    Strong,  3 

670.  Wall.  97;  Williams   vs.   Baker,   17 

lU.  S.  Rev.  St.  Sec.  247S;  Cragin  Wall.    144;    Myers    vs.     Craft,    13 

vs.  Powell,    128  U.  S.  691;  5  Stat.  Wall.   291;    R.    R.    Co.  vs  United 

at  L.,  496;  U.  S.  Rev.  Stat.,  2378;  States,  92  U.  S.  733;  Davenport  vs. 

Oregon    Donation   Act,  9   Stat,  at  Lamb,  13  Wall.  418;  Thredgill  vs. 

L.,  496.  Pintard,  12  How.   24;  Woolcott  vs. 

a  Ante  Sec.  138.  Des  Moines  Co.,  5  Wall.  681;  Wil- 

3  Brader  vs.    Natoma  Water  etc.  Hams  vs.  Baker,  17  Wall.  144. 

Co.,  loi  U.  S.  274;  50  Cal.  621;   Wi-  ^  Kan.  Pac.  Ry.  Co.  vs.  Atch.  etc. 

nona  etc.  Ry.  Co.  vs.   Barney,  113  Ry.  Co.,  112  U.  S.  414;  Winona  etc. 

U.S.  618;   Atchison   vs.   Peterson,  Ry.  Co.  vs.  Barney,  113  U.  S-  618; 

20  Wall.  507;  St.  Joseph  etc.  Ry.  Barney  vs.  Winona  etc.  Ry.  Co.,  117 

Co.   vs.    Baldwin.    103   U.    S.   426;  U.  S.  228;  Wis.  Cent.  etc.  Ry.  Co. 

Burnham  vs.  Starkey,  41  Kan.  604;  vs.  Price  Co.,  133  U.  S.  496;South- 

Basey  vs.  Gallagher,  20  Wall.  670;  ern  Pac.  Ry.  Co.  vs.  Tilley,  41  Fed. 

Burlington  etc.  Ry.  Co.   vs.  John-  Rep.  729. 
son,  38  Kan.  142;  33  Am.   &  Eng. 


§  141,  142].  LANDS   AND    WATERS.  215 

rights  of  persons  and  rights  of  way  of  those  who  have  con- 
structed canals  and  ditches  to  be  used  for  irrigation  and  in 
mining  operations,  and  the  right  of  all  bona  Jide  settlers 
upon  the  surveyed  or  unsurveyed  portion  of  the  public  domain, 
are  rights  which  the  Government  has  by  its  conduct  recog- 
nized and  encouraged  and  is  bound  by  that  conduct  to  protect, 
even  should  these  rights  have  accrued  prior  to  the  Acts  of 
1 866  or  of  1870.  And  furthermore,  Congress  in  making 
donations  or  grants  to  railroad  companies  can  not  exercise 
its  liberality  at  the  expense  of  pre-existing  rights,  which, 
though  imperfect,  are  still  meritorious,  and  have  just  claim 
to  the  protection  of  the  legislature  and  the  Courts.^ 

§  142.  Reguliir  Disposal  Tlirouji^li  tlie  General  Laud  OIHce. 
— Pre-emption. — ^The  government  has  had  five  principal 
methods  for  the  disposal  of  its  land  through  the  Land 
OflBce.-  It  is  not  the  purpose  of  this  work  to  discuss  these 
various  methods  at  length,  but  a  short  statement  of  each  is 
necessary,  as  one  must  understand  just  when  the  rights  of  the 
parties  taking  lands  first  attached;  audit  is  also  necessary  in 
these  cases  to  ascertain  who  has  the  priority,  not  only  as  to  the 
soil,  but  also  as  to  the  waters  which  flow  over  or  adjoin  it. 

First. — Pre-emption.  The  pre-emptor  goes  upon  the  land, 
improves  it  and  resides  there  continuously  for  six  months,  and 
at  the  expiration  of  the  required  time,  by  making  proof  of  his 
residence  and  improvements,  and  paying  the  sum  of  $1.25  per 
acre,  he  is  entitled  to  a  patent.^  After  the  claimant  has  made 
his  settlement,  and  not  before,  he  is  to  file  a  declaratory 
statement  in  the  land  office  of  that  district,^  within  thirty  days 

1  Ibid.  tied  upon  public  laud  with  a  view 

2 The    Timber    Culture    law    of  to  acquire  a  right  to  pre-emption, 

1878,  U.   S.   Rev.   Stat.  Sec.   2436,  the  land  being  open  to  settlement, 

Repealed  on  March  3rd,  1891,  See  his  right  thus  initiated,  is  not  pre- 

Rev.  Stat.  1874-1891,  p.  940.  judiced    by  a  refusal  of   the   local 

3  U.S.  Rev.  Stat.  Sees.  2257-88;  land  officers,  to  receive  his  proofs 

United   States   vs.    P'itzgerald,    15  of  settlement,  upon  an  erroneous 

Pet.  407;    Frisbie  vs.   Whitney,  9  opinion  that  the  land  was  reserved 

Wall.  187;  The  Sossol  vs.  Ranch,  from  sale. 

II  Op.  Att.  Gen.  490,  Shepley  vs.  ■!  U.  S.  Rev   Stat.  2264;  2  Oo])p's 

Cowan,  91  U.  vS.  330,  where  it  was  Pub.    I^und    I..,    641;    (juinn    vs. 

held,  that  where  a  party  has  set-  Chapman,  iii  U.  vS.  445. 


216  JURISDICTION    OVER  [§  142,  143 

after  the  settlement,  if  the  land  is  surveyed  and  offered  for 
sale;  within  three  months  if  the  land  is  unsiir\'eyed  but 
offered  for  sale;  and  if  unsurveyed,  within  three  months 
after  the  plat  is  filed  in  the  district  land  office.^  The  right  of 
the  pre-emptor  first  attaches  to  the  land,  if  he  complies  with 
the  law  in  other  respects,  at  the  time  of  the  settlement  tipon  the 
same. 

§  143.  Same—  Homestead— Public  Sale— Military  Land 
Warrants. — The  second  method  is  under  the  homestead  law, 
which  is  in  many  respects  similar  to  the  pre-emption  law. 
By  this  method  a  person  makes  an  entry  in  the  local  Land 
Office  of  the  land  subject  to  homestead,  improves  it,  but 
must  besides  this  reside  upon  the  land  continuously  for  five 
years;  and  at  the  expiration  of  that  time,  upon  making  final 
proof  such  residence  and  improvements,  he  is  entitled  to 
receive  a  patent,  without  the  paj^ment  of  money  except  a 
small  amount  for  fees.^ 

Any  person  having  a  homestead  upon  the  public  domain 
can,  by  paying  the  minimun  price  of  the  land  entered  upon, 
obtain  a  patent  for  the  same  under  the  pre-emption  laws. 
Ivikewise,  a  person  having  entered  a  pre-emption  claim  may 
"  homestead  his  pre-emption."  ^  The  right  of  claimant  under 
the  homestead  act  first  attaches  when  he  files  his  application 
in  the  Land  Office.  But  if  he  was  an  actual  and  bona  fide 
settler  prior  to  the  time  that  the  lands  were  offered  for  sale  his 
right  attaches  at  the  time  of  such  settlement.  The  policy  of 
the  Federal  Government  has  always  been  liberal  in  this 
respect.  It  recognizes  the  superior  equity  of  such  settlers  to 
become  the  purchasers  over  that  of  any  other  person,  and  his 
right  to  the  premises  relates  back  to  the  time  of  the  settle- 
ment, provided  he  has  not  allowed  the  time  to  lapse  in  which 

lU.  S.  Rev.  Stat.  vSecs.  2264-65;  United  States  vs.   Reed,   28  Fed. 

Johnson   vs.    Towley,  13  Wall.  72;  Rep.  482;  Union  Pac.  Ry.  Co.  vs. 

Moore   vs.    Robbins,  96  U.  S.  530;  Watts,  2  Hill.  no. 

Tyler  vs.    Green,  28  Cal.  406;  87  3U.  S.  Rev.  Stat.  2301;    Timber 

Am.  Dec.  130  and  note;  Gimmy  vs.  Cases,   11   Fed.  Rep.  81;     United 

Culverson,  5  Sawy.  605.  States  vs.  Freyberry,  32  Fed.  Rep. 

2U.  S.  Rev.    Stat.    2289-2317;    i  195. 
Copp's  Pub.  Land  Laws,  1840;  339; 


§  143].  LANDS    AND    WATERS.  217 

to  make  the  proper  entry  of  the  laud,  after  the  land  is  open 
for  sale.^ 

The  third  method  is  by  public  sale  and  private  entries. 
Congress  may  authorize  the  President  to  issue  an  order 
exposing  certain  lands  for  sale.  And  after  having  been 
offered  at  public  auction  for  a  period  of  two  weeks,  the  lands 
remaining  unsold  are  held  subject  to  private  entry  and  sale.- 

In  these  cases  the  right  of  the  parties  attach  upon  the 
entry  of  the  tract  at  the  Land  Office,  which  must  be  paid  for 
upon  the  day  of  purchase.^ 

The  fourth  method  is  by  the  issuance  of  military  land  war- 
rants. Militar}^  land  warrants  have  been  issued  to  individuals 
under  Acts  of  Congress,  from  time  to  time,  for  military  ser- 
vice, and  the  lands  granted  under  them  are  called  bounty 
lands.  The  law  provides  that  the  lands  for  which  warrants 
have  been,  or  may  be  hereafter,  issued  in  pursuance  of  law, 
may  be  located  in  one  body,  according  to  the  legal  subdivisions 
of  the  public  lands,  upon  any  of  the  lands  of  the  United 
States,  subject  to  private  entry  at  the  time  of  such  location 
and  at  the  minimum  price. ^  The  location  of  land  under  a 
military  land  warrant  is  more  in  the  nature  of  a  sale  than  a 
grant  or  donation  and  is  disposed  of  through  the  General  Land 
Office,  and  the  term  "  all  lands  remaining  unsold"  is  consid- 
ered to  except  lands  located  under  land  warrants.^  The  right 
to  lands  entered  under  these  warrants  attach  to  the  original 

iClemeutsvs.  Warner,  24  How.  U.  S.,  Sees.  2414,  2423.     Gould  & 

394;  U.S.  Rev.  Stat.   2265;   John-  Tucker's  Notes  on  Rev.  St.,  p.  556. 

son  vs  Towsley,  13  Wall.  72;  Moore  5Gormley  vs.  Uthe,  116,  111.,  643; 

vs.   Robbins,  6    Otto.   530;    9   Op.  133  U.  S.  655,  where  the  Court  held 

Atty.  Gen.,  515.  that  the  giving  of  a    military  land 

2U.  S.  Rev.  vStat.  2353,  2360.  warrant  l)y  the  holder  thereof  to 

By  Act  of  March  2nd,    1889,   25  tlie  proper  officers  of  the  govern- 

Stat.  L.  854,  all  lands  of  the  United  nient,   with  directions  that  it  be 

States  were  withdrawn  from  being  located  in  a   designated   tract   of 

subject   to  private   entry,    except  public  land,  constituted  a  sale  of 

those  in  Missouri.    Gould  &  Tuck-  that  tract  within  the  meaning  of 

er's  Notes  on  Rev.  Stat.  552.  that  Act  of  Congress  of  September 

3U.  S.  Rev.  Stat.  2556;  (iould  ^:  2.Sth,  1850.  9  Stat,  at  k.,  519  c.  84. 

Tucker's  Notes  on  Rev.  Stat.  552.  I'ussell  vs.  Ciregg,   113  U.  S.  550; 

4  As  to  the  general  law  upon  the  Doddridge  vs. Thompson,  9  Wheat, 

subject  see  Chapter  X,  Rev.   Stat.  499;  Reynolds  vs.  McArthur,  2  I'et. 


218  JURISDICTION    OVER  [§  143,  144 

owner  thereof  or  to  his  assigns,^  zvhen  the  entry  is  made  and  he 
receives  his  certificate  of  the  same.^ 

The  last  of  these  methods  is  by  the  Desert  Land  Act^  of 
March  3rd,  1877  ;  modified  by  Act  of  March  3rd,  i8gi. 

This  Act  provides  that  a  person  entitled  to  the  right,  upon 
payment  of  twenty-five  cents  per  acre,  may  file  a  declaration 
under  oath  with  the  local  Land  Office  that  he  intends  to 
reclaim  a  tract  of  desert  land,  not  exceeding  one  half  section, 
by  conducting  water  upon  the  same,  and  within  a  period  of 
four  years  after  such  declaration,  upon  making  final  proof  of 
the  reclamation  of  the  land  he  is  entitled  to  a  patent,  upon 
payment  of  one  dollar  additional  per  acre.**  The  right  first 
attaches  upon  the  claimant's  making  the  proper  entry  in  the 
Land  Office. 

§  144.  Same. — Riglits  Attach  When. — As  the  term  entry 
is  of  frequent  occurrence  in  this  discussion  its  meaning  should 
be  fully  explained.  As  applied  to  the  appropriation  of  public 
lands  it  means  that  act  by  which  an  individual  acquires  an 
inceptive  right  of  record  to  possession  of  the  unappropriated 
soil  of  the  public  domain  by  filing  his  necessary  papers  in  the 
proper  office.^  However,  an  equitable  right,  as  has  been  seen, 
may  attach  under  certain  circumstances  upon  the  mere  settle- 
ment of  the  land  and  before  the  filing  of  any  papers  at  all. 
And  the  party  who  takes  the  first  step,  if  followed  up  to  patent, 
is  deemed  to  have  acquired  the  better  right  as  against  all 
others  to  the  premises.  The  patent,  which  is  afterwards  is- 
sued, relates  back  to  the   date  of  the  initiatory  act,  and  thus 

417;  Taylor  vs.  Meyers,  7  Wheat.  2u.    S.    Rev.    Stat.    2414,     2423; 

23;  Jackson  vs.  Clark,   i  Pet.  62S;  Gould  &:  Tucker's  Notes  to  Rev. 

M'Arthur  vs.   Browder,  4  Wheat.  Stat.,   p.  556:    Gray  vs.  Jones,   14 

488;  Bouldin  vs.  Massie,  7  Wheat.  Fed.  Rep.   83;  Key  vs.    Jennings, 

122;  Watts  vs.  I/indsey,  7  Wheat.  66  Mo.  356;  Wirth  vs.  Bronson,  98 

158;  Maxwell  vs.  Moore,  22  How.  U.    S.    iiS;    Stinsou  vs.   Geer,    42 

185;    Walker  vs.  Smith,   21   How.  Kan.  520. 

579.  3  Of  March  3rd,  1877;   19  Stat,  at 

1  These  warrants  are  made  assign-  L,.  377,  modified  by  Act  of  March 

able  by  law.     See  U.  S.  Rev.  Stat.  3rd,  1891;  26  Stat,  at  L    1095. 

Sec.  2414;   Bronson  vs.  Kukuk,   3  ^2  Copp's  Land  Laws,  888,  909. 

Dill.  490;    5    Atty.   Gen.   ap.   237,  5  Chotard  vs.    Pope,    12   Wheat. 

387,  509.  586. 


§  14-4,  145].  LANDS    AND    WATERS.  219 

cuts  off  all  intervening  claimants,  whether  that  act  be  an  actual 
settlement  upon  the  land  itself  or  filing  the  necessary  papers 
in  the  Land  Office.^  "Other  things  being  equal,  he  who  has 
the  priority  has  the  superior  right,"  applies  to  all  conflicting 
Congressional  grants'-'  and  to  all  conflicts  between  these  grants 
and  the  claims  of  settlers.  Homestead,  pre-emption,  or  other 
claims,  entered  before  the  location  of  the  railroad,  though 
after  the  passage  of  the  land  grant  Act,  are  not  affected 
thereby.^ 

III.  Jurisdiction  over  Public  Lands  and  Waters. 

§  145.  Jurisdiction  of  Appropriation  of  Water  Upon  the 
Public  Domain.— Waters  upon  the  public  domain,  or  upon 
lands  to  which  the  United  States  still  holds  the  title,  are  sub- 
ject and  open  to  appropriation  under  the  authority  of  the  laws 
of  the  United  States,  as  set  forth  in  the  previous  chapter  of 
this  work.  These  waters,  although  upon  the  public  domain 
of  the  United  States,  are  situated  within  the  various  States 
and  Territories  of  the  arid  west,  and  must  be  appropriated, 
transferred  or  used,  according  to  the  laws  and  rules  governing 
the  same,  of  that  State  through  which  the  stream  flows, 
from  the  fact  that  the  United  States  has  only  the  rights  of  a 
proprietor  over  these  lands  and  waters,  and  not  the  rights  of 
a  political  sovereign.  And  the  United  States,  by  giving  the 
authority  and  right  to  appropriate,  divested  itself  of  the  title 
to  these  waters,  and  all  control  over  the  same  passes  to  the 
legislature  of  the  respective  States  or  Territories  through 
which  they  flow.  The  power  to  prescpibe  such  rules  forms  a 
part  of  the  law  concerning  real  property,  and  belongs  exclu- 

IShepley  vs.    Cowan,    91    U.  vS.  This  is  so,  even  though  such  set- 

330-  tier's  claim   be    abandoned   after- 

2  vSt.  Paul  etc.   Ry.    Co.    vs.   \Vi-  ward.     The    principle   is   that  no 

nona,  etc.  Ry.  Co.,   112  U.  .S.  720;  land  can  pa.ss  by  a  Congressional 

Kan.    Pacific     Ry.    Co.    vs.    Dun-  Act,  which  is  not  in  the  control  of 

meyer,    113   U.    S.  629;    Northern  the  Government  at  the  time  of  the 

Pac.  Ry.  Co.  v.s.  St.  P.  etc.  Ry.  Co.,  location  of  the  road. 

26  Fed.  Rep.  551.  vSee  also  I'lmslcc  vs.  Vuung,   24 

a  Kansas   Pac.   Ry.  Co.  vs.   Dun-  Kan.  732;  Clements  vs.  Warner,  24 

nieyer,  113  U.  S.  629;  affirming  29  How.  394. 
Kan.  725. 


220  JURISDICTION    OVER  [§  145 

siveh'  to  the  jurisdiction  of  the  respective  States,  and  even 
Territories  so  long  as  the  laws  of  the  same  are  not  in  conflict 
with  the  laws  of  the  United  States. ^  B}-  the  tGth  clause  of 
the  8th  Section  of  the  ist  Article  of  the  Constitution  we  find 
that  power  is  given  to  Congress  ' '  To  exercise  exclusive 
legislation  in  all  cases  whatsoever  over  such  district  (not  to 
exceed  ten  miles  square)  as  may,  by  cession  of  particular 
States  and  the  acceptance  of  Congress,  become  the  Seat  of 
the  Government  of  the  United  States,  and  to  exercise  like 
authorit}^  over  all  places  purchased  by  the  consent  of  the 
legislature  of  the  State  in  which  the  same  shall  be,  for  the 
erection  of  forts,  magazines,  arsenals,  dock  yards,  and  other 
needful  buildings."^  So  within  the  District  of  Columbia,  and 
other  places  purchased  and  used  for  puposes  above  mentioned, 
the  municipal  powers  of  the  government  of  ever}'  description 
are  united  and  are  the  sole  governing  powers.'^  But  these  are 
the  onl}^  cases  within  the  United  States  in  which  all  the 
powers  are  united  in  a  single  government.  Even  in  cases  of 
temporar}'  Territorial  organization  a  local  government  alwa^^s 
exists,  and  the  specific  rules  for  the  appropriation  and  use  of 
waters,  as  forming  a  part  of  the  law  concerning  real  property, 
falls  within  the  jurisdiction  of  the  local  laws,  so  long  as  they 
are  not  in  conflict  with  those  of  the  United  States  upon  the 
subject.  The  United  States  is  simply  the  proprietor  of  the 
public  lands,  outside  of  the  few  exceptions  above  noted.  And 
whatever  may  be  the  rules  adopted  by  the  statutes    or  deci- 

1  Pollard  et  al.  vs.  Haggiii,  44  U.  Dumphy  vs.  Kleinsclimidt  et  al., 
S.  212;  Goodtitle  et  al.  vs.  Kibbe,  11  Wall.  610;  Willardvs.  Presbury, 
9  How.  478;  John  Doe  et  al.  vs.  14  Wall.  676;  Phillips  vs.  Payne, 
Beebe  et  al.,  13  How.  26;  Stale  of  92  U.  S.  130;  United  vStates  vs. 
Penn.  vs.  Wheeling  &  Belmont  Fox,  94  United  States  315. 
Bridge  Co.,  13  How.  5S4;  Smith  vs.  Transfer  of  lands  governed  by 
State  of  Maryland,  18  How  71.  State  decisions,  /ex-  loci  rei  sitae. 

2  Hepburn   et  al.    vs.    EUzey,    2  See    notes    Lawyers'    edition     to 
Cranch.  444;  Longbars  vs.  Blake,  Clark  vs.  Graham,  19  U  S.  577. 

5  Wheat.  317;  Cohens  vs.  Virginia,  Elmendorf   vs.  Taylor,  23  U.  S. 

6  Wheat.  264;  Amr.  Ins.  Co.  vs.  152;  Darby  vs.  Mayer,  23  U.  S. 
Canter  i  Pet.  511;  Kendall  vs.  465;  Jackson  vs.  Chew,  25  U.  S. 
United  States,  12  Pet.  524;  United       153. 

States   vs.   De    Witt,    9   Wall.    41;  :^Ibid. 


§145,1-40].  LANDS    AXl)    WATiniS.  221 

sions  of  any  particular  State  with  reference  to  the  rights  of 
riparian  owners  and  appropriators,  still  that  doctrine,  hereto- 
fore described,  as  originating  from  the  local  customs  of  miners 
and  sustained  by  the  legislation  of  Congress,  is  confined  in 
its  operation  to  the  public  domain  of  the  United  States,  and 
all  extension  of  this  doctrine  to  other  .lands  and  other  pro- 
prietors, and  all  additional  rules,  must  necessarily  proceed 
from  the  vStates  themselves.^ 

§  14().  Lex  Loci  Sitae  jifter  Title  luis  i>asse(i  from  the 
Ooverumeilt. — The  title  to  land  or  water  having- once  passed 
from  the  United  States,  can  be  acquired  or  lost  only  in  the 
manner  prescribed  by  the  law  of  the  State  where  such  land 
or  water  is  situated,  and  the  Federal  Courts  are  bound  to  apply 
the  laws  and  rules  of  the  State  in  which  the  property  is 
situated,  and  to  decide  the  controversy  as  the  State  Court 
would  .2  And  the  United  States  Government  has  no  power  to 
la}'  down  any  rules  of  law  that  would  be  binding  upon  its 
grantees  after  they  have  acquired  their  title  from  the  gov- 
ernment concerning  the  use  to  which  the  lands  or  water  must 
be  put.  All  such  laws  come  clearly  within  the  jurisdiction  of 
the  States.  Before  title  has  passed  from  the  government  the 
United  States  has  a  perfect  title  to  the  public  lands  and  an 
absolute  and  uncjualified  right  of  disposal.  AU  the  lands  and 
waters  of  the  government  not  appropriated  by  competent 
authority  before  they  were  acquired  by  the  government  are 
in  the  first  instance  the  exclusive  property  of  the  United 
States,  to  be  disposed  of  to  such  persons  at  such  times,  in 
such  manner  and  by  such  titles  as  the  government  may  deem 
most  advantageous  to  the  public.     This  right  of  the  Govern- 

1  See  Pomeroy  Rip.  Rights,  vSec.  Clark  vs.  vSniith,  13  Pet.  195;  Wil- 
30.  cox  vs.  Jackson,  13  Pet.  498;  Amis 

2  Walker  vs.  vState  Coin's;  17  vs.  vSmith,  16  Pet.  303;  Fisher  vs. 
Wall.  648;  vSupervisors  vs.  United  Ilaldenian,  20  How.  186;  Miles  vs. 
States,  18  Wall.  71;  State  vs.  Swal-  Caldwell,  2  Wall,  35;  Suydani  vs. 
low,  I  Bond.  189;  Coolidge  vs.  Cur-  Williamson,  24  How.  427;  Chicago 
tis,  I  Bond.  222;  vSimms  vs.  Irvine,  vs.  Roljbins,  2  Black  418;  Ro.ss  vs. 
3  Dall.  425;  Waring  vs.  Jack.son,  i  Duval,  13  Pet.  45;  Orvis  vs.  Powell, 
Pet.  570;  Davis  vs.  Mason,   i  Pet.  8  Otto  176. 

503;  Hinde  vs.  Vattier,  5  Pet.  398; 


222  JURISDICTION   OVER  [§  146, 147 

ment  has  been  uniformly  reserved  by  solemn  compact  upon 
the  admission  of  new  States  into  the  Union,  and  has  always 
been  recognized  and  respected  by  the  various  States  within 
which  large  portions  of  the  public  lands  of  the  United  States 
have  been  located,  and  within  which  much  of  these  lands 
are  still  remaining.  The  legislatures  of  the  various  States 
in  which  the  public  lands  are  situated  have  no  power  to  inter- 
fere and  to  dictate  to  the  United  States,  to  whom,  or  in  what 
manner,  or  by  what  title,  the  public  lands  shall  be  conveyed 
in  the  first  instance.  But  after  the  title  has  once  passed  the 
law  of  the  State  wherein  the  land  is  situated  alone  prevails.  ^ 
And  as  to  what  laws  shall  determine  this  question  the  rule  is 
laid  down  in  Wilcox  vs.  Jackson, ^  to  be,  "  We  hold  the  true 
principle  to  be  this,  that  whenever  the  question  in  any  Court, 
State  or  Federal,  is,  whether  the  title  to  land,  which  had  been 
once  the  property  of  the  United  States  has  passed,  that  question 
must  be  resolved  by  the  laws  of  the  United  States  but  that 
whenever,  according  to  those  laws,  the  title  shall  have  passed, 
then  that  property,  like  all  other  property  in  the  State,  is 
subject  to  State  legislation,  so  far  as  that  legislation  is  con- 
sistent with  the  admission  that  the  title  passed  according 
to  the  laws  of  the  United  States."^  But  it  must  be  borne  in 
mind,  that  from  the  moment  that  tracts  of  land  which  were 
once  public,  and  which  border  upon  a  stream,  and  are  situ- 
ated within  a  State  or  Territory,  have  come  into  private 
ownership  of  patentees  or  grantees  of  the  Government,  all 
controversies  as  to  their  rights  upon  the  subject  as  to  whether 
their  owners  are  riparian  proprietors  or  otherwise  must  be 
determined  and  regulated  wholly  by  the  laws  of  the  State 
or  Territory  in  which  the  land  is  located,  as  Congress,  after 
the  title  has  once  passed  from  the  Government,  has  no  power 
to  legislate  concerning  the  title  of  lands  and  the  incidents 
thereto  situated  within  a  State. 

§  147.  Grantee  Takes  Subject  to  Conditions  Annexed  to 
Grants. — The  United   States  as  the  proprietor  of  the  public 

1  Irwin    vs.    Marshall,    20   How.  2  13  Peters  498. 

561;     Vansickle      vs.     Haines,      7  3  Irvine  vs.    Marshall,    20  How. 

Nev.  249;  Union  M.  &  M.  Co.  vs.       558. 
Ferris,  2  Saw.  176. 


§  147].  LANDS    AND    WATERS.  223 

lands  has  bj'  virtue  of  its  proprietorship,  the   absolute    and 
unqualified  right  of  disposal,^  and  neither  a  State  nor  Territo- 
rial legislature  can  dictate,  modify  or  embarrass  in  any  man- 
ner  the   right  of  Congress  to  the  primary  disposal   of  the 
public  lands.2     Also    an    inland    lake  or  stream   incapable  of 
being  navigated,  is  naturally  a  part  and  parcel  of  the  land 
itself,  inseparably  annexed  to  the  soil,  and  as  such  passes  to 
the  grantee  or  patentee  of  the  soil  from  the  United  States, 
unless  certain  conditions   are   annexed,    either    in  the  grant 
itself,  or  by  general  Act  of  Congress,  prior  to  the  grant.     But 
the  Federal  Government  as  proprietor  of  the  public  domain 
has  the  power  to  annex  conditions  to  grants.     It  may  do  this 
either  in  the  grant  or  patent  itself,  conveying  each  particular 
portion  of  the  public  domain  to  its  grantees  and  patentees,  or  it 
may  by  Congressional  legislation  adopt  any  general  regula- 
tions or  impose  any  conditions  or  limitations  upon  the  use  of  the 
public  domain,  upon  all  persons  who  acquire  title  to  portions 
of  the  public  lands  from  the  Government.     And  the  title  so 
acquired  will  be  held  by  the  grantee  thereof,  subject  to  such 
conditions  and  limitations.     Congress  has   provided  by   gen- 
eral statute  that,  "whenever,  by  priority  of  possession,  rights 
to  the  use  of  water  for  mining,  agricultural  or  other  purposes, 
have  vested  and  accrued,  and   the  same  are  recogni/.ed  and 
acknowledged  by  the  local  customs,  laws  and   decisions  of 
Courts,  the  possessors  and  owners  of  such  vested  rights  shall 
be  maintained  and  protected  in  the  same;    and  the  right  of 
way  for  the  construction  of  ditches  and  canals,  for  the  purpose 
herein  specified,  is  acknowledged  and  confirmed. "^     Also  by 
another  section  of  the  Act  of  1866,  it  is  enacted:   "As  a  con- 
dition of  sale,  in  the  absence  of  necessary  legislation  by  Con- 
gress,  the  local   legislature   of  any   State  or  Territory  may 
provide  rules  for  working  mines,  involving  easements,  drain- 
age and  other  necessary  means,  to  their  complete  development; 


1  Ante   vSectioii    134;    Irvine    vs.  Jourdan  vs.  Barratt,  4  How.   169; 
Marshall,  20  How.  558.  United  States  vs.  Gratiot,  14  Tet. 

2  Irvine    vs.   Marsliall,    20   How.  526. 

558;  Richertvs.  Felps,  6Wall.  160;  a  Act  of  1866,   U.  S.   Rev.    ,Stat. 

Gibson  vs.  Chouteau,   13  Wall.  92;  2339. 


224  JURISDICTION   OVER  [§  147, 148 

and  these  conditions  shall  be  fally  expressed  in  the  patent."^ 
The  patent  spoken  of  is  that  issued  by  the  United  States  to 
the  purchasers  of  the  public  domain.  Thus  by  a  general 
statute,  Congress  has  provided  for  a  right  of  way  over  the 
public  lands  for  ditches  and  canals  for  all  those  who  have 
made  an  appropriation  of  water  before  the  lands  were  disposed 
of,  and  that  all  grantees  of  the  Government  who  subsequently 
acquire  portions  of  this  land,  shall  take  and  hold  this  title 
subject  to  such  existing  rights  of  way;  or  that  all  grantees  of 
public  lands  bordering  upon  a  stream  or  lake  shall  hold  their 
titles  subject  to  any  previously  existing  appropriation  of 
water;  or  further  that  all  grantees  of  the  public  lands  shall 
take  their  titles,  subject  to  the  local  customs  or  laws  of  the 
State  within  which  the  lands  are  situated  concerning  the  uses 
of  water  for  mining,  irrigating,  agricultural  and  other  pur- 
poses.^ 

§  148.  Same. — Same. — Autliorities  Discussed. — It  must  be 
borne  in  mind  that  these  conditions  and  limitations  to  the  title 
to  the  lands  which  originally  belonged  to  the  public  domain 
are  not  confined  to  the  immediate  grantees  of  the  Federal 
Government.  If  the  grantee  of  the  Government  sells  his  land, 
his  purchaser  only  acquires  the  same  title  that  he  himself  had, 
and  takes  the  land  also  "subject  to  the  same  conditions  and 
limitations.  Also  on  the  other  hand,  if  the  public  land  bor- 
dering upon  a  stream  or  lake  and  situated  within  a  State,  should 
all  be  conveyed  to  private  persons,  free  from  any  condition  or 
limitation,  Congress  would  have  no  power  to  control  such  per- 
sons in  the  use  of  their  lands  or  in  the  use  to  which  they  put 
the  waters  of  the  stream  or  lake  upon  which  their  lands  bor- 
der. If,  also,  the  streams  and  lakes  are  wholly  situated  on 
lands  which  have  been  granted  to  a  State  and  no  appropria- 
tion of  the  water  of  such  streams  or  lakes  was  ever  made 
prior  to  the  grant  then  the  grant  carries  all  right,  title  or 
interest  in  and  to  the  waters  to  the  State,  and  the  waters  must 
be  appropriated  under  its  laws.  However,  if  all  or  part  of  the 
water  had  been  appropriated  prior  to  the  grant,  then  the  State 

1  United  States  Rev.  Stat.  2338.  670;  Union  M.  &  M.  Co.  vs.  Fer- 

2Basey   vs.    Gallagher,   20   Wall       ris,  2  Sawyer  176. 


§  148].  LANDS    AND    WATERS.  225 

as  well  as  any  other  grantee  of  the  Government  takes  the  land 
from  the  United  States,  subject  to  all  "vested  rights."  The 
power  to  legislate  and  to  prescribe  rules  after  once  the  title  to 
lands  which  were  public  has  passed  in  the  first  instance  to  in- 
dividuals, corporations  or  states,  belongs  exclusively  to  the 
State  as  a  part  of  its  supreme  municipal  authority  over  persons 
and  property  within  its  jurisdiction. 

Mr.  Justice  Hilh'er  in  rendering  the  opinion  in  the  case  of 
Union  Mill  and  Mining  Co.  vs.  Ferris,^  discusses  this  general 
subject  at  some  length,  and  the  part  relating  thereto  is  well 
worth  quoting  in  this  connection.  He  says,  relative  to  Sec- 
tion nine,  of  the  Act  of  Congress  of  July  26th,  1866,  which 
we  quote  as  follows:  "It  gives  the  possessor  of  a  quartz 
lode  a  right  of  pre-emption,  and  it  declares  that  the  person 
who  has  acquired  a  right  to  the  use  of  water  by  priority  of 
possession  shall  be  maintained  and  protected  in  the  same  if 
such  right  is  recognized  and  acknowledged  by  the  local  cus- 
toms, laws  and  decisions  of  Courts.  The  policy  of  this  enact- 
ment, so  far  at  least  as  it  relates  to  agricultural  districts,  may 
be  doubtful,  but  it  is  the  law  of  the  land,  and  the  Courts  must 
carry  out  what  appears  to  be  the  intention  of  the  legislature, 
as  therein  expressed.  And  that,  as  indicated  by  the  Act,  ap- 
pears to  be  to  grant  to  the  owner  of  possessory  rights  to  the 
use  of  water  under  local  customs,  laws  and  decisions  the  ab- 
solute right  to  such  use,  which  the  Government  alone  could 
grant.  Under  this  law,  when  a  possessory  right  to  the  use  of 
waters  is  claimed,  whether  or  not  such  right  exists  will  be 
determined  by  reference  to  the  local  customs,  laws,  decisions, 
and  the  question  will  be  determined  just  as  it  would  have  been 
had  it  been  raised  between  occupants  before  the  title  to  the 
land  had  passed  from  the  Government.  When  the  right  is 
thus  ascertained  the  statute  has  the  force  of  confirming  it  to 
the  person  entitled  under  the  local  laws  and  decisions.  *  *  * 
As  against  these  patents,  neither  can  claim  any  right  to  the 
use  of  the  water  by  virtue  of  prior  appropriation  or  possession, 
but  in  respect  to  them  their  rights  to  the  water  must  be  fixed  by 
the  law  applicable  to  them  as  owners  of  the  soil  through  which 

1  2  Sawyer,  176. 


226  JURISDICTION  OVER  LANDS  AND  WATERS.        [§  148 

the  stream  naturally  flows.  But  if  when  the  Act  was  passed, 
the  defendant  had  such  a  right  of  priorit}^  of  possession  as  that 
Act  contemplates,  upon  the  construction  which  must  be  given, 
that  right  is  confirmed  in  him,  and  he  is  entitled  to  protection 
as  against  one  claiming  as  riparian  proprietor  merely,  through 
a  patent  issued  after,  and  when  no  right  had  vested  in  the 
patentee  before  the  Act  became  a  law.  The  statute  is  in  effect 
incorporated  into  such  subsequent  patent,  and  operates  as  an 
exception  out  of  the  estate  granted.  "^ 

iHobart   vs.    Ford,   6   Nev.    77;  53  Cal.  135;  Osgood  vs.  El  Dorado 

Shoemaker    vs.    Hatch,    13   Nev.  Water  Co.,  56  Cal.,  571;  Himes  vs. 

261;  Rivers  vs.    Burbank,    13  Nev.  Johnson,   61    Cal.    259;    Coffin  vs." 

398;  Jones  vs.  Adams,   19  Nev.   78;  Left  Hand  Ditch  Co.,  6  Colo.  443; 

Broder  vs.  Natoma  Water  Co.,  50  Woodruff  vs.  North  Bloomfield  M. 

Cal.  621;  loi  U.  S.  274;  Titcomb  vs.  Co.,  8  Sawy.  626;  9  Id.  441 
Kirk,  51  Cal.  288;  Cave  vs.  Crafts, 


CHAPTER  VI. 
Methods  by  Which  Appropriations  of  Water  are  Effected. 


Section. — 

149.  Scope  of  Present  Chapter. 

I.  ESSENTIALS   OF   AN   APPROPRI- 

ATION. 

150.  Appropriation  of   waters  for 

a  "beneficial  use." 

151.  Same. — Authorities     dis- 

cussed. 

152.  Same. — Essentials  of   appro- 

priations   by    canal    com- 
panies. 

153.  Same. — Combs    vs*   Agricul- 

tural Ditch  Company. 

154.  Change  of  use  of  water. 

II.  METHOD     BY     WHICH     AN    AP- 
PROPRIATION  IS   EFFECTED. 

155.  Who  are  entitled    to   appro- 

priate waters. 

156.  Title  to  the  soil  unnecessary. 

157.  Notice   of    intent   to    appro- 

priate. 


Section, — 

158.  Same. — Continued. 

159.  Ph^'sical    acts   necessary   to 

constitute  an  appropriation. 

160.  Reasonable  diligence  must  be 

used  in  completion  of  works. 

161.  vSame. — Continued. 

162.  There  must  be  an  actual  diver- 

sion of  the  water. 

163.  Same. — Continued. 

164.  There  must  be  an  actual  user 

of  the  water  appropriated. 

165.  All  of  the  water  appropriated 

must  be  used. 

166.  Same. — Continued. 

167.  When   the    appropriation    is 

complete. 

168.  Doctrine  of  relation. 

169.  Same. — Continued. 

170.  Modifications  of  above  rules 

by  local  laws. 

171.  Summar}'  of  chapter. 


§  149.  Scoi)e  of  Present  Chapter.  —  Having  shown  how 
the  appropriation  of  water  npoii  the  public  domain  originated, 
and  having  followed  the  history  of  the  doctrine  down  to  the 
present  time,  we  will  devote  this  chapter  to  a  discussion  of  the 
requisite  essentials  of  a  valid  appropriation  of  waters,  the  theory 
of  an  appropriation  for  a  "beneficial  use,"  and  next  to  the 
methods  by  which  an  appropriation  is  effected. 

1.  Essentials  of  an  Appropriation. 

§  1.5(».  ApproiH'iation  of  Waters  for  a  ''  Beneficial  Use." 

— The  Supreme  Court  of  California  defines  the  word   "ai)pro- 
priation,"  as  follows:   "Appropriation  is  the  intent  to  take, 


228 


APPROPRIATION    OF    WATER. 


[§  150 


accompanied  by  some  open  physical  demonstration  of  the  in- 
tent, and  for  some  valuable  use."^  And  all  the  authorities 
agree  upon  the  proposition,  that  in  order  to  make  an  appro- 
priation of  waters  a  valid  one,  there  must  be  an  intention 
upon  the  part  of  the  appropriator  to  appl}^  the  waters  to  some 
beneficial  use;  and  without  this  intention  of  applying  it  to  some 
useful  purpose,  within  a  reasonable  time,  it  is  held  that  no  valid 
appropriation  has  been  made  and  that  the  water  is  subject  to 
appropriation  by  other  parties.^  The  very  birth  and  life  of  a 
prior  right  to  the  use  of  water  is  the  intention  to  apply  the 
same  to  some  beneficial  purpose.^  This  intention  goes  to  the 
very  foundation  of  the  act  of  appropriation,  and  must  be  evi- 
denced by  a  constancy,  or  steadfastness  of  purpose  or  labor  as 
is  usual  with  men  engaged  in  like  enterprises,  who  desire  a 
speedy  accomplishment  of  their  designs;  such  assiduity  in  its 
prosecution  as  will  manifest  a  bona  fide  intention  to  complete 


1  MeDonald  vs.  River  Co.,  13 
Cal.  222,  223. 

SMaeris  vs.  Bicknell,  7  Cal.  261; 
10  Cal.  217,  where  it  was  held  that 
merely  cutting  a  ditch  for  a  drain, 
and  using  the  water  for  no  useful 
purpose  gives  no  priority. 

McKinney  vs.  Smith,  21  Cal. 
374;  Weaver  vs.  Eureka  Lake  Co., 
15  Cal.  271;  where  it  was  held,  that 
to  render  valid  a  claim  of  water  b}' 
appropriation,  the  claim  must  be 
for  some  useful  or  beneficial  pur- 
pose, or  in  contemplation  of  a 
future  appropriation  for  such  pur- 
pose, for  the  parties  claiming  it. 
A  claim  for  mere  speculation  will 
not  answer. 

Thomas  vs.  Guiraud,  6  Colo. 
540;  Ortman  vs.  Dixon,  13  Cal.  33; 
Davis  vs.  Gale,  32  Cal.  33,  where 
Sanderson,  J. ,  said:  "Appropria- 
tion, use,  and  non-use  are  the  tests 
of  his  right;  and  place  of  use,  and 
character  of  use  are  not.  When 
he  has  made  his  appropriation  he 
becomes  entitled  to  the  use  of  the 


quantity  which  he  has  appropri- 
ated at  any  place  where  he  may 
choose  to  convey  it,  and  for  any 
useful  and  beneficial  purpose  to 
which  he  may  choose  to  apply  it. 
Any  other  rule  would  lead  to  end- 
less complications,  and  most  mate- 
rially impair  the  value  of  water 
rights  and  privileges." 

Woolmanvs.  Garringer,  i  Mont. 
543;  McDonald  vs.  Bear  River  Co., 
13  Cal.  220;  McDonald  vs.  Askew, 
29  Cal.  200;  Gibson  vs.  Puchta,  33 
Cal.  310;  Dick  vs.  Caldwell,  14 
Nev.  167;  Dick  vs.  Bird,  14  Nev. 
161;  Monroe  vs.  Ivie,  2  Utah  535. 

3 Combs  vs.  Ag.  Ditch  Co.,  17 
Colo.  146;  28  Pac.  Rep.  966,  where 
it  was  held  that:  a  mere  diversion 
of  water  is  not  an  appropriation  of 
it  within  the  meaning  of  the  con- 
stitution, a  diversion  without  ap- 
plication to  a  beneficial  use  is 
unlawful;  and  also  that  the  privi- 
lege of  diverting  water  extends 
only  to  uses  truly  beneficial,  and 
not  to  purposes  of  speculation. 


§   150,  151].  APPROPRIATION    OF    WATER.  229 

the  construction  of  the  works  necessary  to  carry  the  water  to 
the  place  where  it  is  to  be  used,  and  the  application  of  the  same 
to  the  use  intended  .^  This  purpose  contemplated  for  the  use  of 
the  water  may  be  irrigation  for  agricultural  or  horticultural 
purposes,  mining,  milling,  manufacturing,  domestic  or  any 
other  purpose  for  which  water  is  needed  to  supply  the  natural 
and  artificial  wants  of  man,  provided  that  it  be  for  a  benefi- 
cial use.-  And  a  right  acquired  by  an  appropriation  for  any 
of  the  above  named  purposes  stands  upon  the  same  footing, 
and  an  appropriation  or  use  of  the  water  for  one  of  these  pur- 
poses is  not  justifiable  when  it  interferes  with  the  prior  ap- 
propriation or  location  for  one  of  the  others.'^ 

§  151.  Same.— Autliorities  Discussed.— The  decisions  have 
settled  the  question  that  where  a  person  makes  an  appropria- 
tion of  the  waters  of  a  stream  there  must  be,  first,  some  actual 
beneficial  purpose  existing  at  the  time,  or  contemplated  in  the 
future,  as  the  object  for  which  the  appropriator  is  to  use  the 
water;  second,  such  intention  must  be  followed  up  by  the  ap- 
propriator proceeding  to  complete  his  ditches  or  canals  for 
conveying  the  water  to  the  place  where  it  is  needed  without 
delay.  And  if  there  is  no  actual  intention  at  the  time  the  ap- 
propriation is  made  to  apply  the  water  to  some  of  the  pur- 
poses named,  or  there  is  unnecessary  delay  in  the  completion 
of  the  works  for  the  application  of  the  water,  then  a  subse- 
quent appropriator  who  first  diverts  and  applies  the  water,  for 
a  beneficial  purpose,  has  the  better  right. ^  In  that  now  cele- 
brated case  of  Lux  vs.  Haggin,^  McKinstry,  J.,  said:  "The 
appropriator  does  not  necessarily  act  as  the  agent  of  the  State 

1  vSee  authorities  cited  above.  Orttnan  vs.  Dixou,  13  Cal.  34;  Gib- 

Kimball  vs.  Gearhart,  12  Cal.  27;  son  vs.  Puchta,  33  Cal.  310;  Felix 

Ophir  S.  Mg.  Co.  vs.  Carpenter,  4  vs.  Los  Angeles,  58  Cal.  73;  Elms 

Nev.  534.  vs.  Los  Angeles,  58  Cal.  80;  Basey 

SPomeroy   on    Riparian   Rights,  vs.  Gallagher,  20    Wall.  682;  Jen- 
Sec.  47.  nison    vs.    Kirk;    98    U.    S.    453; 

3  McDonald  vs.   Bear  River  Co.,  Munroe  vs.  Ivie,  2  Utah  535;  Lehi 

13  Cal.  220;  15  Cal.  145;  Fo.ster  vs.  Ir.  Co.  vs.  Moyle,  4  Utah  327. 
Spring    Creek    Co.,    5    Cal.    395;  4  Weaver   vs.  Eureka  Lake  Co., 

Ramsay    vs.    Chandler,  3  Cal.  90;  15  Cal.   271;  and  authoiities  cited 

Leigh  vs.  Independent  Ditch  Co.,  8  above. 
Cal.  328;  Ball  vs.  Kehl,  87  Cal.  505;  O69  Cal.  255;   10  Pac.  Rep.  674. 


230  APPEOPRIATION    OF    WATER.  [§  151 

emploj'ing  the  power  of  eminent  domain  for  the  benefit  of  the 
public,  but  by  his  appropriation  makes  the  running  water  his 
own,  subject  onlj'  to  the  test  that  he  shall  employ  it  for  some 
useful  purpose."^  The  actual  appropriation,  diversion  and 
application  of  water  to  a  useful  purpose  gives  a  perfect  title 
over  all  previous  intentional  appropriations  not  consummated 
or  carried  into  effect;  and  where  a  ditch  has  been  dug  and  a 
diversion  of  water  has  been  made,  simply  for  the  purpose  of 
drainage,  and  not  with  the  bona  fide  intention  of  appropriat- 
ing the  water  thus  diverted  and  applying  the  same  to  some 
beneficial  use,  and  other  parties  afterwards  have  dug  ditches  for 
the  express  effect  of  taking  the  water  and  applying  it  to  some 
such  purpose, it  is  well  settled  that  the  latter  parties  have  gained 
a  priority  over  the  first,  and  all  grantees  holding  under  them.- 
So  also  it  has  been  held  that  an  appropriation  for  the  mere 
purpose  of  speculation  is  nugatory  and  void.^  "If  the  law 
were  to  be  declared  otherwise,"  saj^s  Mr.  Justice  Elliot,  in 
Combs  vs.  Agricultural  Ditch  Co.,^  "if  ditch  companies  were 
at  liberty  to  divert  water  without  limit,  and  at  the  same  time 
make  the  ownership  of  stock  an  absolute  condition  precedent 
to  the  right  to  procure  water  from  their  irrigating  canals, 
water  rights  would  soon  become  a  matter  of  speculation  and 
monopol}^  and  the  tillers  of  the  soil  would  have  to  pa^^  ex- 
orbitant rates  for  the  use  of  the  water,  or  our  arid  lands 
would  become  unproductive.  The  Constitution  provides  that 
the  waters  of  natural  streams  may  be  diverted  to  beneficial 
use;  but  the  privilege  of  diversion  is  granted  only  for  uses 
truly  beneficial,  and  not  for  the  purpose  of  speculation.  *  *  * 
An  excessive  diversion  of  water  cannot  be  regarded  as  a 
diversion  to  beneficial  use  within  the  meaning  of  the  Constitu- 
tion.    Water  in  this  country  is  too  scarce,  and  consequently 

iDe  Necochea  vs.  Curtis,  So  Cal.  33;     Woolman    vs.    Garringer,    i 

397;  Vau  Biber  vs.  Hilton,  84  Cal.  Mont.  535. 

585;  Alta  Land  Co.  vs.   Hancock,  '^  Weaver  vs.  Eureka  Lake  Co., 

85  Cal.  219,  229;  United  Laud  Assn,  15  Cal.  271;  Combs  vs.  Agricultural 

vs.  Knight,  85  Cal.  418,  477.  Ditch   Co.,   17  Colo.   146;  28  Pac. 

2Maeris  vs.  Bicknell,  7  Cal.  262;  Rep.    966;  Dick  vs.    Caldwell,    14 

McKinney  vs.  Smith,  21  Cal.  381;  Nev.    167;    Bilew   vs.    Paisley,    18 

N.    C.    &    S.  C.  Co.  vs.  Kidd,  37  Or.  47. 

Cal.  312;  Davis  vs.  Gale,   32  Cal.  ^\~  Colo.  152;  28  Pac.  Rep.  966. 


§  151,  152].  APPROPRIATION    OF    WATER.  231 

too  precious,  to  admit  of  waste."  In  any  case,  in  order  that 
an  appropriation  ma)'  hold,  it  must  conform  with  the  laws  of 
the  United  States  and  the  laws  of  the  State  or  Territory 
wherein  the  same  is  made.  A  person  who  has  simpl}'  used 
the  water  of  a  stream  by  proper  diversion,  and  who  has  not 
complied  with  the  laws  of  the  State  for  the  appropriation  of 
the  same,  may  be  enjoined  from  the  further  use  of  the  water 
by  a  subsequent  appropriator  who  has  complied  with  all  the 
laws.  But  as  against  anj^  person  who  also  has  not  complied 
with  the  laws  of  appropriation,  the  person  actually  using  the 
water  for  beneficial  purposes  has  the  first  right. 

§  152.  Same— Essentials  of  Appropriation  by  Canal  Com- 
panies.— As  we  have  seen  in  the  previous  section,  not  only 
must  the  appropriation  be  prior  in  time  but  also  it  must  be 
legal  in  all  respects  or  it  is  not  valid.  And,  after  the  appro- 
priation is  made,  the  true  test  as  to  whether  the  water  can  be 
held  or  not,  is  whether  the  same  has  been  or  is  about  to  be 
applied  to  some  beneficial  use,  although  the  method  of  divert- 
ing or  carrying  the  same  where  it  is  needed,  or  of  making 
such  application  is  immaterial.^  But  we  now  come  to  a  some- 
what different  phase  of  the  case  or  question,  and  that  is  this: 
Is  the  delivery  of  water  from  a  canal  or  ditch  company  to  the 
consumer  for  the  purpose  of  application  of  the  same  to  his 
land  for  irrigation,  or  to  be  used  by  him  for  any  other  bene- 
ficial purpose,  and  when  the  same  is  so  used,  such  an  appropria- 
tion for  a  beneficial  purpose,  for  which  the  water  can  be  legally 
diverted  from  the  natural  stream  and  held  by  the  canal  com- 
pany ?  2  In  other  words,  can  one  party  appropriate  and  divert 
the  water,  and  can  another  party  apply  it  to  some  beneficial 
purpose,  and  still  be  within  the  law,  so  that  the  first  party  can 
hold  the  water  appropriated  ?     Upon  this  question  the  weight 

1  Thomas   vs.    Ciuiraud,  6   Colo.  theproprietor  thereof,  and  as  such, 

530.  could  sell  and  deliver  it  for  irriga- 

2In  the  case  of  Wyatt  vs.  Lari-  tion  purpcses,  and  that  right  could 

nier  &  Weld  Ir.'Co.,  i  Colo.  App.  be  defeated  only  by  a  failure  of 

480;  29  Pac.  Rep. 906, the  Court  held  application  of  the  water  to  a  bene- 

that   a   canal   company    diverting  ficial  use.     But  the  Supreme  Court 

water  to  a  beneficial   use   Ijecame  overruled    the    decision     of     the 


232 


APPROPRIATION    OF    WATER. 


[§152 


of  authority  seems  to  hold,  that  if  all  the  water  appropriated 
by  the  ditch  company  is  applied,  either  by  the  company  or  by 
the  parties  to  whom  it  sells  the  water,  to  a  beneficial  use, 
then  the  ditch  compan^^  can  hold  all  of  the  water  appropriated 
by  it.  But,  on  the  other  hand,  if  the  company  should  appro- 
priate and  divert  more  water  than  it  can  or  does  use  for  any 
beneficial  purpose,  or  more  than  it  sells  for  that  purpose,  the 
surplus  water  is  open  for  reappropriation;  or  mandamus  will 
lie  against  the  ditch  company  to  compel  it  to  deliver  to  con- 
sumers who  will  so  apply  it  to  some  beneficial  use  or  purpose.^ 
This  rule  is  based  upon  the  principle  that  water  after  it  has 
been  actually  appropriated  and  diverted  is  such  property,  that 
a  person  or  company  may  sell  all  or.  part  of  it,  and  still  hold 
the  appropriation,  provided  all  the  water  diverted  is  used  for 
a  beneficial  purpose.^ 

Thus  by  the  canal  company  making  the  appropriation  and 
diversion,  and  selling  and  delivering  the  water  to  consumers 
to  be  used  by  them  for  some  beneficial  use  or  purpose,  the 
separate  acts  of  the  canal  compan}^  as  carriers,  and  of  the 
Court  of  Appeals,  and  Mr.  Justice       Ft.  Morgan  Land  &  Canal  Co.  vs. 

So.  Platte  Ditch  Co.,  (Colo.)  30  Pac. 
Rep.  1032,  where  the  Court  held 
that  the  awarding  of  priorities  to 
ditches,  in  excess  of  the  amount 
of  water  actually  appropriated  at 
the  time,  is  error.  A  diversion 
and  promise  to  use  in  the  future 
will  not  support  such  a  decree. 
Canal  Co.  vs.  Southworth,  13  Colo. 
hi;  21  Pac.  Rep.  1028;  Strickler 
vs.  Colo.  Springs,  16  Colo.  61;  26 
Pac.  Rep.  313;  Combs  vs.  .Agricul- 
tural Ditch  Co.,  17  Colo.  141;  28 
Pac.  Rep.  966. 

2 Strickler  vs.  Colo.  Springs,  16 
Colo.  61;  26  Pac.  Rep.  313,  where 
the  Court  held  that  a  priority  to 
the  use  of  water  for  irrigation  is  a 
property  right,  and  may  be  sold 
and  transferred  separately  from 
the  land  in  connection  with  which 
the  right  ripened. 


Goddard  in  rendering  the  opinion 
of  that  court  said:  "  We  adhere  to 
the  doctrine  that  such  a  canal 
company  is  not  the  proprietor  of 
the  water  diverted  by  it,  but  that 
'  it  must  be  regarded  as  interme- 
diate agency  existing  for  the  pur- 
pose of  aiding  consumers  in  the 
exercise  of  their  constitutional 
rights,  as  well  as  private  enter- 
prise prosecuted  for  the  benefit  of 
its  owners.'  "  33  Pac.  Rep.  147. 
Citing,  Wheeler  vs.  Irrigation  Co. 
10  Colo.  582;  17  Pac.  Rep.  487; 
Farmer's  High  Line  Canal  Co.  vs. 
Southworth,  13  Colo,  iii;  21  Pac 
Rep.  1028;  Strickler  vs.  Citj'  of 
Colorado  Springs,  16  Colo.  61;  26 
Pac.  Rep.  313;  Combs  vs.  Agricul- 
tural Ditch  Co.,  17  Colo.  146;  28 
Pac.  Rep.  966. 

1  Wheeler  vs.  Northern  Colo.  Ir. 
Co.,  9  Colo.  248;   17  Pac.  Rep.  487; 


§  152,  153].  APPROPRIATION    OF    WATER.  2.33 

consumers  are  joined  one  to  the  other  to  complete  the  single 
act  of  appropriation/  which  is  held  to  be  valid. 

§  153.  Slime.— Combs  vs.  Agriciiltiinil  Ditch  Company.— - 

In  the  State  constitution  of  Colorado  is  to  be  found  the  fol- 
lowing provisions,  Article  i6,  Sec.  6:  "The  right  to  divert 
unappropriated  waters  of  anj-  natural  stream  to  beneficial  uses 
shall  never  be  denied.  Prioritj^.of  appropriation  shall  give 
the  better  right  as  between  those  using  the  water  for  the  same 
purpose."  *  *  *  These  provisions,  as  is  readily  seen,  are 
simply  the  embodiment  in  the  highest  law  of  the  State  of  the 
principles  of  law  which  govern  the  use  of  water  upon  the  pub- 
lic lands  of  the  United  States,  and  which  were  first  founded 
upon  the  customs  and  regulations  of  the  earlj^  miners  of  Cali- 
fornia. In  the  above  entitled  action,  which  is  a  ver}-  recent 
one,  the  plaintiff  Combs  applied  for  a  writ  of  mandamus 
against  the  defendant.  The  Agricultural  Ditch  Company,  to 
compel  it  to  supph^  him  with  water  for  irrigation  purposes. 
The  defehdant  had  theretofore  refused,  although  it  had  suffi- 
cient water  in  its  ditch,  and  the  plaintiff  had  tendered  to  the 
defendant  company  the  amount  of  money  fixed  by  the  Board 
of  County  Commissioners,  and  required  by  law,  as  the  maxi- 
mum rates  to  be  charged  for  the  use  of  water,  whether  fur- 
nished by  individuals  or  corporations.  In  the  District  Court 
the  application  for  a  writ  of  mandamus  was  denied.  Mr. 
Justice  Elliot,  in  giving  the  opinion  of  the  Supreme 
Court,  which  reversed  the  judgment  below,  said  upon  the 
point  discussed  in  our  last  section:  "  The  unappropriated 
waters  of  every  natural  stream  belong  to  the  public  and  are 
subject  to  appropriation  bj'  the  people  to  beneficial  use.  Pri- 
ority of  appropriation  to  actual  beneficial  use,  and  not  mere 
ownership  of  stock  in  a  ditch  compan}-,  gives  the  better  right 
to  such  use.  Individuals  may  organize  a  company,  either  by 
or  without  incorporation,  for  the  construction  of  an  irrigating 
ditch,  and  may  by  such  means  divert  the  unappropriated 
waters  of  a  natural  stream.  They  ma}'  provide  that  their  sev- 
eral interests  in  such  an  enterpri.se  shall  be  represented  by 
shares  of  stock.     But  neither  the  company  nor  any  stockholder 

I3  Irrigation  Age  139.  -17  Colo.  146;  28  Pac.  Rep.  966. 


234  APPROPRIATION    OF    WATER.  [§  153 

of  the  company  can  withhold  the  water  from  beneficial  use, 
nor  reserve  it  for  the  future  use  of  junior  appropriators  to  the 
prejudice  of  prior  appropriators,  nor  to  the  exclusion  of  those 
who  in  the  meantime  may  undertake,  in  good  faith,  to  make 
a  valid  appropriation  thereof.  Undoubtedly,  those  who  by 
labor  or  by  the  payment  of  mone}' 'actually  construct  an  irri- 
gating ditch  may  therebj'  acquire  a  prior  right  to  the  water 
which  may  be  diverted  therein,  provided  they  apply  the  same 
to  beneficial  use  within  a  reasonable  time  after  such  diversion. 
But  they  cannot  postpone  the  exercise  of  such  right  for  an  un- 
reasonable time,  so  as  to  prevent  others  from  acquiring  a  right 
to  the  water;  nor  can  they  thus  acquire  a  right  to  dispose  of 
the  water  contrary  to  the  priority  rule.  Those  who  construct 
ditches  and  divert  water  for  general  purposes  of  irrigation 
must  within  a  reasonable  time  apply  the  water  to  beneficial 
use,  or  else,  upon  proper  application  and  for  proper  considera- 
tion, they  must  dispose  of  the  same  to  those  who  are  ready  to 
make  beneficial  use  of  it.  If  ditch  companies  are  .unwilling 
to  be  charged  with  such  duties  and  responsibilities,  they  must 
leave  the  water  in  the  natural  stream.  The  mere  diversion  of 
the  water  is  not  an  appropriation  of  it,  within  the  meaning  of 
the  Constitution.  There  must  be  an  application  of  the  water 
to  beneficial  use  within  a  reasonable  time  or  the  diversion  is 
unlawful.  *  *  *  In  a  carefulh^  considered  opinion  recently 
delivered  b}'  Mr.  Justice  Hayt,  in  the  case  of  Strickler  vs. 
Cit}^  of  Colorado  Springs,  i6  Colo.  6i,  26  Pac.  Rep.  313,  this 
Court  held  that  'a  priority'  to  the  use  of  water  for  irrigation  is 
a  property  right,  and  may  be  sold  and  transferred  separately 
from  the  land  in  connection  with  which  the  right  ripened.' 
It  must  not  be  inferred  from  this  language  that  such  prioritj^ 
ma}^  be  secured  b}^  the  mere  acquisition  of  stock  in  an  irrigat- 
ing company  without  applying  the  water  to  beneficial  use. 
An  owner  of  irrigating  stock  cannot  thus  carry  prior  rights  to 
the  use  of  water  in  his  pocket  for  an  indefinite  or  unreasonable 
time,  and  thereby  prevent  others  from  acquiring  a  do?ia  fide 
priority  by  actual  use.  The  ownership  of  a  prior  right  to  the 
use  of  water  is  essentiall}^  different  from  the  ownership  of  stock 
in  an  irrigating  compan3^  The  ownership  of  the  stock,  like 
the  title  to  other  property,  ma}-  be  acquired  by  descent  of  pur- 


§  153].  APPROPRIATION    OF    WATER.  235 

chase.     The    ownership  of  the    prior  right    can  be  acquired 
originally  only  by  the  actual  beneficial  use  of  the  water.    The 
very  birth  and  life  of  a  prior  right  to  the  use  of  water  is  actual 
user.     A  stockholder  in  an  irrigating  company  who  makes  an 
actual  application  of  water  from  the  company's  ditch  to  bene- 
cial  use   may,  by  means  of  such   use,    acquire  a  prior  right 
thereto;  but  his  title  to  the  stock  without  such  use  gives  him 
no  title  to  the  priority.     He  may  transfer  his  stock  to  whom 
he  will,  but  he  can  only  transfer  his  priorit}'  to  some  one  who 
will  continue  to  use  the  water.     *     *     *     jn  so  far  as  the  de- 
fense was  placed  upon  the  ground  that  the  stockholders  were 
actual  prior  appropriators  of  water  from  the  ditch  to  beneficial 
use,  as  explained  in  this  opinion,  the  defense  was  proper;  and 
if,  as  a  matter  of  fact,  the  actual  appropriations  of  w^ater  by 
the  stockholders  were  prior  to  the  application  of  the  petitioner, 
and  if  their  appropriation  \vas  equal  in  the  aggregate  to  the 
whole  amount  of  water  carried  by  the  ditch,  the  application  of 
the  petitioner  was  properly  refused.     If,  on  the  other  hand, 
there  was  a  surplus  of  water  remaining  in  the  ditch  after  sup- 
plying prior  appropriators,  the  petitioner  was  entitled  to  be 
supplied  out  of  such  surplus.     The  legal  theory  upon  which  a 
case  of  this  kind  should  be  tried  is  very  simple,  however  diffi- 
cult it  may  be  to  apply  the  law  to   the  evidence.     It  is  plain 
that  the  quantity  of  land  and  the  character  of  the  soil   which 
the  appropriators  of  water  from  the  ditch  have  under  cultiva- 
tion, as  well  as  their  actual  prior  appropriations  of  water  to 
the  irrigation  of  such  lands,  and  not  the  number  of  shares  of 
stock  that  they  may  own,  are  the  important  matters  to  be  con- 
sidered in  determining  such  a   controversy.     In  the  trial  of 
such  an  issue  it  is  also  important  to  observe  that  no  matter 
how  early  a  person's  priority  of  appropriation  may  be,  he  is  not 
entitled  to  receive  more  water  than  is  necessary  for  his  actual 
use.     An  excessive  diversion  of  water  cannot  be  regarded  as  a 
diversion  to  beneficial  use,  within  the  meaning  of  the  Constitu- 
tion.    Water  in  this  country  is  too  scarce,   and  consequently 
too  precious,  to  admit  of  waste.     The  Constitutional  rule  of 
distribution,  '  first  come,  firstserved,'  does  not  imply  that  the 
prior  appropriator   may  be  extravagantly  prodigal  in  dealing 
with  this  peculiar  bounty  of  nature.     We  are  aware  that  it 


236  APPROPRIATION    OF    WATER.  [^  153,  154 

may  not  be  practicable  to  attain  mathematical  exactness  in 
measuring  the  flow  of  water,  but  a  reasonable  approximation 
to  substantial  accuracy  should  be  aimed  at  in  determining 
controversies  relating  to  water  supply."^ 

§  154.  Change  of  Use  of  Water. — The  application  of  the 
use  of  water  for  which  the  appropriation  is  made  must  be 
continuous.  The  water  must  not  be  allowed  to  run  to  waste 
for  any  length  of  time,  or  it  will  be  treated  as  an  abandon- 
ment, and  hence  open  for  appropriation.  But  when  water 
has  been  lawfully  appropriated,  the  priority  thereby  acquired  is 
not  lost  by  changing  the  use  for  which  it  was  first  appro- 
priated and  applied,  or  the  place  at  which  it  was  first  employed, 
provided  that  the  alterations  made  from  time  to  time  shall 
not  be  injurious  tb  the  rights  acquired  by  others,  prior  to  the 
change.  This  was  held  to  be  the  law  at  a  very  early  period 
as  will  be  seen  from  the  authorities  cited. ^  It  will  be  seen 
upon  examination,  that  the  authorities  hold  conclusively,  that 
in  all  cases  the  effect  of  the  change  upon  the  rights  of  others 
is  the  controlling  consideration,  and  that  in  the  absence  of 
injurious  consequences  to  others,  any  change  which  the  party 
chooses  to  make  is  legal  and  proper,  either  as  to  the  place  of 
using  the  water,  or  the  use  of  the  water.  In  fact  this  is  also 
the  common  law  rule  upon  the  subject. "*  So  if  the  original 
appropriation  was  made  to  run  a  saw  mill,  the  w^ater  may  be 

1  See  also  Canal  Co.   vs.  South-  as   against   one    who   has    dug    a 

worth,  13   Colo,  m,  21    Pac.  Rep.  ditch  from  the  same  stream  before 

1028;  Strickler  vs.  City  of  Colorado  the    change   is   made.      Kidd   vs. 

Springs,  16  Colo.  61;  26  Pac.  Rep.  Laird,  15  Cal.  162;  Coffin  vs.  Left 

313.  Hand    Ditch    Co.,    6    Colo.     443; 

2Maeris  vs.  Bicknell,  7  Cal.  261;  Thomas  vs.  Guiraud,  6  Colo.  530, 

Hill  vs.  Smith,  27  Cal.  476;  Davis  Sieber  vs.  Frink,  7  Colo.  148;  Dorr 

vs.  Gale,  32  Cal.  26;  where  it  was  vs.    Hammond,  7  Colo.    79;  Butte 

held  by  the  Court  that:  "A  person  T.  M.  Co.  vs.  Morgan;  19  Cal.  616; 

who  has  appropriated   the   water  McDonald  vs.  Askew,  29  Cal.  206; 

of  a  stream,  and  caused  it  to  flow  N.  C.  &  S.  C.  Co.  vs.  Kidd,  37  Cal. 

to  a  particular  place  by  means  of  311;  Junkans  vs.  Bergin,    67    Cal. 

a   ditch    for    a    special    use,    may  270. 

afterwards     change     the    use     to  ^Angell    upon    Water    Courses, 

which  he  first  applied  the  water.  Sees.    224,    226,  227;    Belknap   vs. 

and  the  place  at  which  he  used  it,  Trimble,  3  Paige  Ch.  605;  Whittier 

without  losing  his  priority  of  right,  vs.  Cacheco  Mfg.  Co.,  9  N.  H.  454. 


§   154].  APPROPHIATIOX    OF    WATER.  237 

used  to  run  a  grist  mill,  for  mining,  irrigating  or  for  some 
other  useful  purpose,  and  the  appropriator  will  lose  no  right 
that  he  may  have  acquired  by  virtue  of  his  appropriation  so 
long  as  he  injures  the  rights  of  no  one  else,  acquired  prior  to 
the  change.^  So  if  one  has  made  a  valid  appropriation  of 
water  of  a  stream,  by  means  of  a  ditch  for  the  purpose  of  irri- 
gating a  certain  tract  of  land,  or  working  a  particular  mining 
claim,  or  for  anj'^  other  particular  use,  at  a  certain  locality,  he 
may,  after  he  has  sufficiently  irrigated  the  tract  or  worked  out 
the  mining  claim,  or  abandoned  the  same,  extend  his  ditch 
and  use  the  water  at  other  points  without  losing  his  priority 
right,  as  against  one  who  afterwards  dug  a  ditch  from  the  same 
stream,  and  appropriated  the  water  before  the  irrigation  was 
completed  or  the  claim  washed  out.  The  mere  change  in 
the  place  of  use,  from  one  localit}^  to  another,  b}'  the  extension 
of  the  ditch,  or  by  construction  of  branches  of  the  same  ditch, 
does  by  no  means  effect  the  prior  rights  of  the  first  appro- 
priator. Appropriation,  use,  or  non-use  are  the  tests  of  his 
right;  and  the  place  of  use  or  the  character  of  the  same  is  not. 
When  he  has  made  his  appropriation,  in  manner  required 
by  law,  he  becomes  entitled  to  the  use  of  the  entire  quantity 
of  water  which  he  has  appropriated  at  any  place  where  he 
may  choose  to  convey  it,  and  for  any  useful  or  beneficial 
purpose  to  which  he  may  choose  to  apply  it.  An}^  other  rule 
would  lead  to  endless  complications  and  most  materially 
impair  the  value  of  water  rights  and  privileges.^  But  on  the 
other  hand,  the  mode  of  appropriation  or  the  point  of  diver- 
sion cannot  be  changed  by  the  first  appropriator  so  as  to 
interfere  with  the  rights  acquired  b}^  subsequent  appropri- 
ators  prior  to  the  change.^ 

'Ibid;  McDonald,  et  al  vs.  Bear  a  ibid;     Columbia    Mining     Co. 

River  etc.  M.  Co.  13  Cal.  220.  vs.    Holter,     i     Mont.    296.      See 

2lbid;  Maeris  vs.  Bicknell,  5  Cal.  Butte     M.     Co.    vs.    Morgan,     19 

261;  Davis   vs.    Gale,    32   Cal.    27;  Cal.  609,  where  it  was  held   that: 

Woolman  vs.  Garringer,   i  Mont.  A  person  appropriating  and  divert- 

535;  Fabian   vs.  Collins,  2   Mont.  ing   the   water   of   a  stream  at   a 

510;    Correa   vs.    Frietas,    42   Cal.  given    point,    cannot    afterwards 

339;  McKinney  vs.  Smith,  21  Cal.  change  the  point  of  diversion  to 

374.  I"\ilton  vs.  Swan  R.  P.  M.  Co.  the    prejudice    of     a    subsequent 

12  Col.  12.  locator.    See  also  Simpson  vs.  Wil- 


238  APPROPRIATION    OF    WATER.  [§  155 

II.  Method  by  Wliicli  an  Appropriation  is  Ettfected. 

§155.  Who   are   Entitled  to   Appropriate   Waters. — All 

the  inhabitants  of  the  States  and  Territories  of  the  arid  region 
who  are  qualified  to  own  and  possess  lands  have  the  right  to 
appropriate  the  waters  of  the  natural  streams  or  lakes  of  that 
region,  for  any  beneficial  use  or  purpose;  also  the  right  to 
construct  public  or  private  ditches  and  canals,  and  use  the 
same  for  the  purpose  of  conducting  the  water  from  the  natural 
river,  creek,  stream  or  lake  to  the  place  where  it  is  to  be  used. 
An  Indian  may  acquire  a  right  to  use  the  water  on  the  public 
lands  by  an  appropriation,  and  may  maintain  an  action  for  the 
diversion  of  such  water.  The  right  would  also  carry  with  it 
the  right  to  construct  the'  necessary  canals  and  ditches  and 
keep  them  in  repair;  and  those  who  might  obtain  title  under 
him  would  also  have  the  same  authority.^  Upon  this  question, 
in  the  case  of  lyobdell  vs.  Hall,  the  Supreme  Court  of  Nevada, 
said:  "At  common  law  anj^  person,  either  Christian  or 
heathen,  alien  resident  or  non-resident,  with  the  single  excep- 
tion of  alien  enemies,  might  bring  suit  to  enforce  any  civil 
rights  they  might  possess.  It  is  true  that  aliens  under  the 
common  law  could  not  lawfully  hold  real  estate,  and  transmit 
the  same  to  their  heirs;  j'^et  the}'  might  buy  it,  and  maintain 
trespass  for  injuries  thereto,  or  their  lessee  might  maintain 
ejectment.  It  has  been  held  in  the  United  States,  that  an 
alien  might  maintain  an}^  personal  action  to  enforce  his  rights 
to  land  by  him  purchased  until  proper  steps  had  been  taken 
to  declare  such  lands  forfeited  to  the  State.  It  has  been 
doubted  whether  he  could  maintain  a  real  action,  though  it 
is  said  that  he  might  defend  himself  against  such  action. 
(Fairforth  vs.  Hunter's  I^essee,  7  Cranch,  603,  where  the 
whole  subject  is  discussed.) 


Hams,    18   Nev.    432;    Lobdell   vs.  Wixson  vs.  Devine,    80   Cal.    385; 

vSimpson,  2  Nev.  274;  Proctor  vs.  Byrne  vs.  Crafts,  73  Cal.  641;  Alder 

Jennings,    6   Nev.   S3;  Barnes  vs.  G.  M.  Co.  vs.  Hayes,  6  Mont.  631; 

vSabron,    10   Nev.    217;    American  Rominger  vs.  Squares,  9  Colo.  327; 

Co.  vs.  Bradford,  27  Cal.  360;  Nev-  See  also  chapter  VIII,  section  248. 

ada  W.Co.  vs.  Powell,  34  Cal.  109;  1  Lobdell   vs.     Hall,  3  Nev.  507, 

Higgins    vs.    Barker,  42  Cal.    233;  516. 


§  155].  APPROPRIATION    OF    WATER.  239 

"If  then  all  persons,  without  regard  to  nationality,  are  in 
this  country  allowed  to  maintain  any  action  to  enforce  their 
rights  to  the  enjoyment  of  all  property,  personal  or  real,  we 
see  no  reason  why  an  Indian  who  has  appropriated  water  on 
the  public  lands  of  the  United  States  might  not  maintain  an 
action  for  the  diversion  of  that  water  as  well  as  any  other 
person.  If  an  Indian  could  maintain  an  action  for  diversion 
of  water,  then  he  certainly  would  have  a  fixed  interest  in  the 
waters  so  diverted,  and  a  clear  right  to  repair  any  temporary 
damage  to  his  ditch  or  dams." 

Canal  companies  and  corporations  may  also  appropriate 
waters  in  their  company  or  corporate  names,  and  for  this  pur- 
pose a  corporation  organized  and  existing  under  the  law"  of  a 
State  is  to  be  considered  a  citizen  within  the  law,  for  those 
purposes.^  And  it  was  decided  in  McKinley  vs.  Wheeler, ^  that 
a  corporation  created  under  the  laws  of  one  of  the  States  of 
the  Union,  "  all  of  whose  members  are  citizens  of  the  United 
States,  is  competent  to  locate  or  join  in  the  location  of  a  min- 
'ing  claim  upon  the  public  lands  of  the  United  States,  in  like 
manner  as  individual  citizens."'^  And  it  therefore  follows 
that  if  a  corporation  can  appropriate  lands  upon  the  public 
domain,  in  its  corporate  name,  that  it  can  also  appropriate  the 
water  necessary  for  the  operations  to  be  carried  on  upon  the 
lands. 

It  has  been  held  that  an  alien  may  hold  a  ditch  and  water- 
right  until  he  has  forfeited  the  same  by  oflSce  found;  and  in 
the  absence  of  such  forfeiture  may  convey  a  good  title.  Upon 
this  subject  the  Supreme  Court  of  Montana,  in  the  case  of 
Quigsley  vs.  Birdseye,^  said:  "  In  the  chain  of  title  of  plain- 
tiff to  the  ditch  and  water-right  which  he  claims  (the  China 

1  North  Noonday  Min.  Co.  vs.  valid  location  of  a  mining  claim, 
Orient  M.  Co.,  6  vSawy.  299;  i  Fed.  provided  the  members  thereof 
Rep.  "jav'  ^'■^  citizens  of   the    United  States 

2  130  U.  S»  Rep.  630.  and   really   qualified     to    make   a 

3  Thomas  vs.  Chisholm,  13  Colo.  location. 

105,  where  the  vSupreme  Court  of  Rev.  vStat.  U.S.  Sec.  2321;  Lee 

Colorado  held  that  a  corporation  Doon  vs.  Tesh,  68  Cal.  43. 

organized  under  the  laws   of   the  -iii  Mont.  439;   28  Pac.  Rep.  741, 

United   States  or  of  any  State  or  743. 
Territory    thereof,      may    make-    a 


240  APPROPRIATION    OF    WATER.  [§  155,  156 

Ditch),  appear  the  names  of  some  alleged  Chinamen  as  grantees 
from  the  older  owners  of  the  ditch,  and- as  grantors  to  the 
plaintiff.  Defendants  claim  that,  under  the  doctrine  of  Tib- 
bitts  vs.  Ah  Tong,  4  Mont.  536,  2  Pac.  Rep.  759,  and  Wulf 
vs.  Manuel,  9  Mont.  279,  23  Pac.  Rep.  723,  Chinamen  can  not 
take  real  estate,  and  therefore,  that  the  grant  of  this  water- 
right  and  ditch  to  the  Chinamen  was  an  abandonment  by  the 
original  owners,  and  hence  plaintiff  took  no  title  from  the 
Chinamen.  In  those  cases  the  real  estate  in  question  was  the 
mining  claims  upon  the  public  domain  of  the  United  States. 

*  *  *  We  said  in  Wulf  vs.  Manuel,  page  285,  9  Mont., 
'  No  other  persons  ma}'  apply  to  purchase  (such  mineral  lands) 
from  the  United  States.  The  mineral  lands  of  the  Govern- 
ment are  not  open  to  exploration,  occupation,  or  purchase  by 
aliens.     An  alien  may  not  take  or  hold  real  estate  of  this  class. 

*  *  *  Let  it  be  conceded,  in  the  case  at  bar,  that  the 
Chinamen  who  were  a  link  in  the  chain  of  plaintiff's  title 
were  aliens.  Let  it  be  conceded  that  the  ditch  and  water- 
right  were  real  estate.  It  was  not  real  estate  of  such  nature 
as  are  possessory  rights  to  mining  claims  upon  the  public 
domains  of  the  United  States.  *  *  *  We  have  simply  this 
proposition:  The  chain  of  title  is  A  to  B  to  C  to  D.  D  is  in 
court  with  his  title  attacked  because  C  was  an  alien.  The 
real  estate  is  not  a  possessory  right  to  a  mining  claim.  All 
that  is  to  be  considered  is  therefore,  whether  an  alien  may 
take  real  estate  and  hold  the  same  until  oflS.ce  found,  against 
collateral  attacks  by  third  persons,  other  than  the  sovereign, 
and  whether  such  alien  in  the  absence  of  forfeiture,  by  office 
found,  may  convey  title  to  his  grantee.  Of  this  there  is  no 
doubt.  At  the  risk  of  affectation  of  learning,  we  subjoin  a 
few  of  the  leading  cases.  "^ 

§  156.  Title  to  tlie  Soil  Unnecessary. — The  common  law 
riparian  rights  vest  in  the  proprietor,  by  virtue  of  his  actual 
ownership  of  land  bordering  upon  a  stream  or  lake,  as  an  in- 

1  Citing   Cross   vs.    De   Valle,    i  Craig  vs.  Radford,  3.  Wheat.  594; 

Wall.  8;  Osterman  vs.  Baldvpin,  6  Mooers   vs.    White,   6   Johns.  Ch. 

Wall.    121;    Fairfax's   Devisee  vs.  360;  i  Washb.  R.  P.  79,  and  cases 

Hunter's    Lessee,   7    Cranch    619;  cited. 
Phillips  vs.  Moore,   100  U.  S.  208; 


§  156].  APPROPRIATION    OF   WATER.  2-41 

cident  to  the  soil  owned  by  him.  In  the  discussion  of  the 
present  subject  it  must  be  borne  in  mind  that  the  ownership 
of  water-rights  in  the  Pacific  States  does  not  depend  upon 
a  legal  title,  or  in  fact  anj'  title  to  lands  upon  the  stream 
owned  b)^  the  appropriator,  but  is  simply  a  possessory  right 
acquired  b}'  an  appropriation  and  diversion  of  the  waters  of 
the  stream,  and  consummated  by  its  application  to  some  bene- 
ficial use  or  purpose  prior  to  its  appropriation,  diversion  and 
use  b}'  anyone  else.  This  title,  prior  to  any  Congressional 
enactment  upon  the  subject,  was  held  to  be  good  as  against 
all  the  world  except  the  Government  or  its  grantees;  and, 
since  the  Act  of  Congress  of  July  26th,  1866,  it  is  held  to  be 
good  as  against  the  Government  and  its  grantees  as  to  all 
rights  of  possession  of  waters  acquired  prior  and  subsequent 
to  the  passage  of  that  Act  that  were  themselves  prior  to  rights 
acquired  b}"  grantees  of  land  bordering  upon  the  stream.^  And 
this  Act  of  1866  and  the  one  of  1870,  which  is  declaratory  and 
amendatory  to  it,  have  had  the  effect  to  preserve  this  priority 
to  the  appropriators  of  waters  as  against  those  who  have  re- 
ceived patents  to  lands.-     The  same  right  in  general  holds 

iHill   vs.    Newman,   5  Cal.  445;  for  other  purposes,"  and  the  Act 

Broder  vs.   Water  Co.,  loi   U.  S.  amendatory     thereof,      approved 

276;  50  Cal.  621;  Basey  vs.  Galla-  July  9th,  1870,   and   the    "Act  to 

gher,    20    Wall   670;     Barnes    vs.  promote  the  development  of  the 

Sabron,  10  Nev.  217.     See  discus-  mineral   resources  of   the  United 

sion,    chapter   VII,   Sections  191,  States,"  approved  May  loth,  1872, 

207,  as  to  rights  acquired  against  must  be  considered  and  construed 

the  Government.  together;    and   said   Acts   merely 

■^Union    Mill    Co.    vs.    Ferris,   2  confirm  to  the  owners  of   mining 

Sawyer  176,  185;  Robert  vs.  Ford,  claims     and     ditches    and    water 

6  Nev.  77;  Shoemaker  vs.  Hatch,  rights  under  public  lands  of  the 

13  Nev.  261;  Rivers  vs.  Burbank,  United    States    the    same    rights 

13  Nev.  398;  Jones  vs.  Adams,   19  which  were  accorded  to  them  by 

Nev.  78;  Hobertvs.  Wicks,  isNev.  the   local  customs,    laws   and  de- 

418;  Broder  vs.  Natoma  Water  Co.  cision  of  the  Courts,  prior  to  the 

50  Cal.  621;  loi  U.  S.  274;  Titcomb  passage  of  the  said  Acts, 

vs.    Kirk,   51    Cal.   288,   where  the  Cave  vs.  Crafts,  59  Cal.  135;  Os- 

Court  held  that  the  provisions  of  good  vs.  El  Dorado  Water  Co.,  56 

the   Acts  of   Congress,    approved  Cal.   571;  Hinies  vs.  Johnson,    61 

July    26th,    1866,     "granting    the  Cal.    259;     Coffin   vs.    Left   Hand 

right   of   way  td   ditch  and  canal  Ditch  Co.,  6  Colo.  443;    De  Neco- 

owners  over  the  public  lands,  and  chca  vs.  Curtis,  80  Cal.  397;  Soutli 


242  APPROPRIATION    OF    WATER.  [§  156,  157 

good  as  to  the  water-rights  upon  land  owned  by  the  various 
States  formed  out  of  the  arid  region,  as  those  States  have  pro- 
visions either  in  their  Constitutions  or  statutes  allowing  water- 
rights  to  be  held  by  prior  appropriation  and  beneficial  use. 
This  subject  will,  however,  be  more  fully* discussed  in  a  sub- 
sequent part.^  Nor  is  it  necessary  that  the  appro priator  in 
order  to  be  entitled  to  the  use  of  the  water,  as  at  common  law, 
should  have  located  or  taken  possession  of  any  tract  or  parcel 
of  the  public  domain  bordering  upon  the  stream  or  lake  from 
which  the  appropriation  is  made.  A  valid  appropriation  may 
be  made  for  the  irrigation  of  lands,  or  for  an)-  other  beneficial 
use,  not  situated  upon  or  near  the  stream,  and  the  very  object 
of  his  appropriation  may  be  to  conduct  the  water  from  the 
stream  through  a  ditch  or  canal,  across  the  interv^ening  public 
lands,  to  irrigate  a  tract  of  land  which  he  possesses,  or  to  work 
a  mining  claim  or  a  mill;  or  even  to  sell  and  dispose  of  the 
water  thus  conducted  through  the  canal,  to  other  parties,  who 
use  it  for  other  purposes  on  their  own  claims  or  tracts  of  lands. ^ 

§  157.  Notice  of  Intent  to  Appropriate. — Having  shown 
above  that  there  must  be  an  actual  bona  fide  intention,  in  order 
to  appropriate  the  water  of  a  stream,  to  apply  the  same  to  some 
beneficial  use  or  purpose,^  one  of  the  first  steps  necessary 
for  the  appropriator  to  take,  is  to  give  notice  of  that  intent. 
There  is  no  particular  form  of  notice  prescribed,  but  any 

Yuba  vs.   Rosa,  8o  Cal.  333;    Ged-  borhood  of  the  stream.  Coffin  vs. 

dis   vs.    Parish,    i    Wash.   587;   21  Left  Hand  Ditch  Co.,  6  Colo.  444. 

Pac.  Rep.  314;  Megerle  vs.  Ashe,  SMaeris  vs.  Bickuell,  7  Cal.  261; 

33  Cal.  74;    Smith  vs.  Athern,  34  Davis  vs  Gale,  32  Cal.  26;  Section 

Cal.    507;  Gould   on   waters,   Sec.  150,   and    authorities    cited.      To 

240;  and  cases  cited.  make    a    valid    appropriation    of 

ISee  Part  II,  Statutes  of  States  water  there  must  be   some  actual 

governing  appropriation.  beneficial  purpose  existing  at  the 

SPomero}'  on   Rip.  Rights,  Sec.  time,  or  contemplated   in   the  fu- 

46;  Hammond  vs.   Rose,  11  Colo.  ture,  as  the  object  for  which  the 

524,  where  it  was  held  that  a  valid  water  is  utilized.  The  needs  of  the 

appropriation  of    the  waters  of  a  purpose  for  which  the  appropria- 

stream,  to  the  exclusion  of  a  ripa-  tion  is  made,   is  the  limit  to  the 

rian  owner,  may  be  made  for  the  amount   of  water   which  may   be 

purpose  of  irrigation,  though  the  ,taken.     Simmons  vs.  Winters,  21 

lands  to  be  irrigated  are  not  loca-  Ore.  35;  27  Pac.  Rep.  7. 
ted  on  the  banks  or  in  the  neigh- 


§  157J. 


APPROPRIATION    OF    WATER, 


243 


form  which  gives  the  name  of  the  appropriator,  a  definite 
description  of  the  locality,  the  stream  from  which  the 
appropriation  is  to  be  made  in  reference  to  some  permanent 
object,  the  amount  of  water  to  be  appropriated,  and  the 
purpose  of  the  same,  has  been  deemed  sufficient.  In  general, 
appropriators  of  waters  have  followed  the  forms  used  to  locate 
and  hold  mineral  claims.  All  that  is  necessary  is  that  the 
terms  of  the  notice  shall  be  sufficient  to  put  a  reasonabh'  pru- 
dent man  upon  enquiry;^  but  such  notices  are  to  be  liberally 
construed.^  The  usual  mode  of  giving  the  notice,  at  an  early 
period,  and  before  anj'  statutory'  enactments  had  taken  effect, 
relative  to  the  same,  was  by  posting  written  or  printed  notices 


1  Kimball  vs.  Gearhart,  12  Cal. 
27,  where  it  was  held  that  where 
parties  go  to  issue  in  actions  for 
the  diversion  of  water,  upon  gene- 
ral averments  and  denials  of  title, 
any  thing  that  legally  supports  or 
attacks  a  title  is  admissible  in  evi- 
dence. Yale  on  Mining  Claims, 
78.  See  Hess  vs.  Winder,  30  Cal. 
349;  McKinney  vs.  Smith,  21  Cal. 
374,  where  in  an  action  involv- 
ing a  right  to  and  extent 
of  a  water  privilege  claimed 
by  plaintiffs  under  an  alleged  ap- 
propriation by  a  number  of  co- 
partners, defendants  to  limit  the 
extent  of  the  appropriation 
offered  in  evidence  a  paper  pur- 
porting to  be  a  copy  of  the  origi- 
nal locating  notice  to  the  co-part- 
ners, and  without  direct  proof  of 
its  execution  showed  that  it  was 
prepared  with  the  knowledge  of 
some  of  the  partners,  and  was 
seen  as  a  posted  notice  by  a  por- 
tion of  them  at  the  point  of  diver- 
sion, and  about  the  time  the  work 
was  commenced,  and  that  its  posi- 
tion was  such  that  it  must  prob- 
ably have  been  seen  by  all;  held 
that  upon  this  proof  the  pa])er  was 
admissible   as   a    part   of  the  res 


gestae.  North  Noonday  Min.  Co. 
vs.  Orient  Min.  Co.,  6  Sawyer,  299- 
503.  Under  the  recent  statutes 
enacted  by  the  various  States  of 
the  arid  region,  provisions  are 
made  for  the  form  of  and  for  the 
recording  of  notices.  See  Part  II, 
Statutory  enactments. 

2  In  Osgood  vs.  El  Dorado  W. 
Co.,  56  Cal.  571,  it  was  held  that 
a  notice  as  follows  was  sufficient: 
"In  conformit)'  with  an  Act  of 
Congress,  entitled  an  Act  granting 
a  right  of  way  to  ditch  and  canal 
owners  over  the  public  lauds,  and 
for  other  purposes,  approved  July 
1866,  the  undersigned  truly  claims, 
and  are  by  priority  of  possession 
entitled  to  the  use  of  the  waters 
of  this  stream  for  mining,  manu- 
facturing, agricultural  and  other 
purposes,  and  intend  to  dam  said 
stream,  and  carry  the  same,  or  a 
portion  thereof,  in  a  flume,  ditch 
or  canal  or  by  natural  channels, 
wherever  found  suitable,  to  cer- 
tain mining  and  agricultural  dis- 
tricts; and  that  the  construction 
of  said  flume  or  ditch  will  not 
injure  any  settler  on  the  pul)lic 
domain.  J.  Kirk, 

F.  A.  J011N.SON." 


244  APPROPRIATION    OF   WATER.  [§  157,  158 

on  or  near  tlie  margin  of  the  stream  or  lake  at  the  point 
where  the  diversion  was  to  be  made;  and  also,  perhaps,  post- 
ing similar  notices  along  the  projected  line  of  the  canal,  at 
various  points,^  I^ater  it  became  customary  not  only  to  post 
the  notices  as  above,  but  also  to  file  and  record  the  same, 
either  in  the  office  of  the  county  recorder  of  the  county,  or 
of  the  recorder  of  the  mining  district,  in  the  district  in  which 
the  appropriation  was  to  be  made.  And  still  at  a  later  period 
especially  in  those  States  which  have  passed  statutory  enact- 
ments relative  to  this  subject,  it  became  necessary  to  file  and 
record  the  notice  in  the  place  provided  by  law,  in  order  to 
hold  the  appropriation.^  And  at  present  it  seems  to  be  the 
better  practice,  and  in  fact  is  required  by  statute,  in  nearly 
all  of  the  western  States  and  Territories,  to  both  post  the 
notices  near  the  stream,  and  along  the  line  of  the  projected 
ditch  or  canal,  and  record  the  same  in  some  official  records, 
which  are  now  designated  by  laws  of  the  various  States  and 
Territories.'^ 

§  158.  Same. — Continued. — The  notice  of  intention  to 
appropriate,  if  the  law  has  been  fully  complied  with,  is 
evidence  of  possession,  but  of  itself  is  not  sufficient.  It  is 
only  when  taken  with  other  acts,  that  it  amounts  to  sufficient 
evidence.  It  forms  one  of  a  series  of  acts,  which  taken 
together  makes  the  right  perfect.'*    And  on  the  other  hand  the 

1  Osgood  vs.  El  Dorado  W.  Co. ,56  5  Nev.  44;  Columbia  M.  Co.,  vs. 
Cal.  571.  Holter,  i  Mont.    296. 

2  See  Rev.  Stat,  of  Arizona,  1889,  3  See  Part  Second  for  Section  of 
Sec.  '917;  California  Civil  Code,  Statutes  of  various  States  relative 
Sec.  1415;   Kimball  vs.  Gearhart,  to  notice. 

12  Cal.  27;  Osgood  vs.  El  Dorado  ^Congervs.  Weaver,  6  Cal.  548; 
W.  Co.,  56  Cal.  571,  575.  Kimball  vs.  Gearhart,  13  Cal.  27; 
Notice  alone  of  an  intention  to  Thompson  vs.  Lee,  8  Cal.  275; 
divert  the  water  of  a  stream,  for  Columbia  M.  Co.  vs.  Holter,  i 
a  specified  purpose,  will  not,  of  Mont.  296;  Robinson  vs.  Imperial 
itself,  constitute  an  appropriation,  vS.  M.  Co.,  5  Nev.  44,  where  the 
but  must  be  followed  up  by  the  circumstances  were  that  certain 
commencement  and  completion  of  parties.  Black  and  Eastman,  in 
the  works  for  the  diversion  there-  December,  1859,  posted  a  notice 
of.  Thompson  vs.  Lee,  8  Cal.  275;  on  a  tree,  on  the  bank  of  the  Car- 
Robinson  vs.  Imperial  S.  M.  Co.,  son  River,   of   the   location  of   a 


§  158].  APPROPRIATION    OF    WATER.  245 

mere  act  of  commencing 'or  digging  a  ditch,  even  with  the 
intent  to  appropriate  the  water  of  a  stream  and  apply  the 
same  to  some  beneficial  use,  is  not  sufficient  of  itself,  without 
some  notice  or  publication  of  the  intent.^  But  this  right  to 
the  use  of  water  being  simply  a  possessory  one  by  the  appro- 
priator,  the  giving  of  public  notice  of  his  intent  to  apply  the 
water  to  some  beneficial  use,  the  surveying  the  ground,  setting 
stakes  along  the  line  of  the  projected  canal,  and  actually 
commencing  and  diligently  pursuing  the  work,  to  its  com- 
pletion, and  finally  using  the  water  for  some  beneficial  use  or 
purpose,  is  as  much  possession  as  the  nature  of  the  subject 
will  admit,  and  forms  a  series  of  acts  of  ownership  that  must 
be  conclusive  of  his  right. ^  Thus  under  this  rule,  the  giving 
of  notice  is  merely  one  of  a  series  of  acts  which  gives  posses- 
sion, but  which  constitutes  onl)^  a  part  of  the  evidence  of  the 
conclusive  right  of  ownership.  Indeed,  from  the  very  nature 
and  character  of  these  water  claims,  it  is  one  of  the  most 
important  acts  of  the  appropriator,  and  tends  more  to  prevent 
imposition  upon  the  public  than  any  of  his  other  acts.  The 
appropriator  might  make  a  survey,  set  stakes  along  the  line 
thereof,  and  immediate!}^  commence  work  thereon,  and  con- 
water  right  commencing  at  that  other  words,  after  the  indication 
point,  and  of  a  right  of  way  for  a  by  some  palpable  and  uneqnivocal 
ditch  of  a  certain  capacity  to  a  outward  sign  of  the  intent  to  ap- 
rocky  bend  of  the  river  below,  propriate.  The  title  to  the  water 
and  within  the  next  six  months  does  not  arise  as  we  have  inti- 
did  some  fifteen  or  twenty  days  mated  before,  from  the  manifes- 
work  on  the  ditch,  but  not  sufR-  tation  of  a  purpose  to  take,  but 
cient  to  make  it  of  any  practical  from  the  effectual  prosecution  of 
use,  held,  not  sufl&cient  acts  on  that  purpose.  This  prosecution, 
the  part  of  Black  and  Eastman,  therefore,  is  a  necessary  element 
to  give  them  actual  possession  of  of  a  title,  and  the  negation  of  this, 
the  land  traversed  by  the  ditch,  or  the  abandonment  of  the  purpose, 
to  prevent  the  subsequent  appro-  is  not  so  much  matter  in  avoid- 
priation  of  them  by  another  party.  ance  of  a  title,  as  it  is  matter  show- 
Un  Kiml)all  vs.  Gearhart,  12  ing  that  no  title  was  ever  ob- 
Cal.  27;  the  Court  said:  "Thus  is  tained  "  .See  also  Robinson  vs. 
put  in  issue  the  very  question  of  Imperial  vS.  IM.  Co.,  5  Nev.  44. 
title,  and  this  involves,  necessarily,  2  Conger  vs.   Weaver,  6  Cal.  548* 

the  due   prosecution    of  the  work       Thompson  vs.  Lee,  8  Cal.  276. 
after   the     appropriation,    or,    in 


246  APPROPRIATION    OF    WATER.  [§  158,  159 

tinue  the  same;  and  yet  none  of  these  acts  without  notice, 
unless  far  progressed,  would  convey  an  idea  to  other  persons 
desiring  to  divert  and  appropriate  the  water  of  a  particular 
stream,  that  he  intended  to  construct  a  trail,  road,  or  ditch;  but 
after  the  notice  of  the  intention  to  appropriate  the  water  has 
once  been  given,  in  order  to  hold  the  right,  thus  only  partially 
acquired,  the  works  by  which  the  appropriation  is  to  be  effected 
must  be  actually  commenced,  and  must  then  be  prosecuted 
with  all  reasonable  diligence,  until  the  same  are  completed,  and 
the  water  diverted  from  its  natural  stream  into  the  ditch ,  and 
conducted  to  the  place  where  it  is  to  be  used,  and  then 
actually  applied  to  some  beneficial  use  or  purpose.^ 

§  159.  Physical  Acts  Necessary  to  Constitute  an  Appro- 
priation.— An  appropriation  of  waters  can  not  be  construc- 
tive, but  must  be  actual.^ 

It  follows,  therefore,  that  a  notice  of  intention  to  appro- 
priate the  water  of  a  specified  stream  is  not  of  itself  sufficient 
to  constitute  an  appropriation  thereof,  although  in  connection 
with  other  acts,   it  may  be  sufficient.^     As  has  been  shown 

iSee  Post  Section  167,  and  cases  because  it  was   not  the  intention 

cited.  to  possess,  but  the  actual  posses- 

2 See   Kell)'   vs.  Natoma   Water  sion  which  gives  the  right." 

Co.,  6  Cal.  105,  108,  in  which  Mr.  In   Conger   vs.    Weaver,   6   Cal. 

Justice  Heydenfeldt  said:     "  Pos-  548,  it  was  held  that  the  enclosure 

session   or    actual    appropriation,  of   the  ground  used  in  digging  a 

must  be  the  test  of  priority  in  all  canal,  not  being  necessary  for  the 

claims  to  the  use  of  water,  when-  work,  would  give  its  proprietor  no 

ever  such  claims  are  not  dependent  higher  rights;  nor  is  it  necessary, 

upon   the   ownership  of  the  land  as    notice,    to    those     who     have 

through   which   the    water   flows.  received     actual     notice     of     the 

Such   appropriation    can    not    be  intended  line  of  the  canal, 

constructive,  because  there  would  See   also   Tuolumne  W.  Co.  vs. 

be  no  rule  or  limit  to  control  it,  Chapman,  8  Cal.  392;  Coryell  vs. 

resting,  as  it  must,  only  in  inten-  Cain,  16  Cal.  567. 

lion.     The  principal  as  laid  down  3 Thompson  vs.  Lee,  8  Cal.  275; 

in    Eddy  vs.  Simpson,  3  Cal.  249,  Weaver  vs.  Eureka   Lake   Co.,  15 

must  govern  this  case.    The  design  Cal.  271;  Kimball  vs.  Gearhart,  12 

of  the  defendants,  two  years  be-  Cal.  27;  Jones   vs.  Jackson,  9  Cal. 

fore,  to  appropriate  Alder  Creek,  237;  Robinson  vs.  Imperial  S.  M. 

as  a  connecting  link  of  their  enter-  Co.,  5  Nev.  44;  Columbia  M.  Co. 

prise  could  not  give  them  exclu-  vs.  Holter  ,  i  Mont.  296. 
sive  rights  until  it  was   executed 


§  159.  160].  APPROPRIATION    OF    WATER.  247 

there  must  be,  first  the  bona  fide  intent  to  appropriate  the 
waters  of  a  stream  and  appl}^  the  same  to  some  beneficial  use 
or  purpose.  Then,  in  connection  with  this  intent,  there  must 
follow  the  phj'sical  acts  necessary  to  constitute  the  actual 
appropriation  of  the  water  which  include  the  notice  to  the 
world  of  the  intent,  the  survej^s  and  commencement  of  the 
digging  of  the  ditches,  and  building  of  flumes,  or  other  works 
necessary;  and  their  completion  within  a  reasonable  time 
after  the  notice;  the  actual  diversion  of  the  water  appropri- 
ated from  the  natural  stream  into  the  appropriator's  ditch; 
and  finally  the  actual  application  of  all  of  the  water  appro- 
priated and  so  diverted  to  some  beneficial  use  or  purpose. 
No  one  of  these  acts  can  stand  alone,  but  all  are  absolutely 
essential  to  the  successful  and  valid  completion  of  the  appro- 
priation. But  just  what  physical  acts  are  necessary  for  its 
successful  termination,  depends  upon  the  condition  of  the 
stream,  the  nature  of  the  climate  and  soil,  the  length  of  the 
canal,  the  diflSculty  of  obtaining  labor,  tools  or  material,  and 
the  many  other  circumstances  connected  with  each  particular 
case.^ 

"In  appropriating  unclaimed  water  on  the  public  lands, 
only  such  acts  are  necessary,  and  such  indications  and  evi- 
dences of  appropriation  required,  as  the  nature  of  the  case 
and  the  face  of  the  country  will  admit  of,  and  are  under  the 
circumstances  and  at  the  time  practicable — surveys,  notices, 
stakes  and  blazing  of  trees,  followed  by  work  and  actual 
labor  without  abandonment,  will  in  every  case,  where  the 
work  is  completed,  give  title  to  the  water  over  subsequent 
claimants."  - 

§  1(>0.  Heasonable  Diligence  Must  Be  Used  in  Completion 
of  Works. — The  law  allows  a  reasonable  time  for  completing 

1  Kimball    vs.    (Vearhart,  I2   Cal.  Nev.    44;      Colinnbia   M.    Co.    vs. 

27;  Osgood  vs.    Kl   Dorado  Water  Ilolter,    i    Mont.   296;  Thomas  vs. 

Co.,   56  Cal.    571;    Thompson    vs.  (luiraud,   6  Colo.  530;  Maeris  vs. 

Lee,  8  Cal.  275;  Kelly  vs.  Natoma  Bicknell,  7  Cal.  261;  King  vs.  Kd- 

Water  Co.,  6  Cal.   107;  Weaver  vs.  wards,  i  Mont.  235;  Wooltnan  vs. 

Eureka    Lake    Co.,    15    Cal.    271;  darringer,   i    Mont.  535;  Atchison 

Davis  vs.  Gale,  32  Cal.  26;  Roljin-  vs.  Peterson,  i  IMont.   561. 

son    vs.    Imperial    S.     M.    Co.,    5  SKimball  vs.  Ciearhart,  12  Cal.  28. 


248  APPROPRIATION    OF    WATER.  [§  160 

the  appropriation,  and  no  unusual  or  extraordinary  exertions 
are  necessary  in  the  prosecution  of  the  work;  but  after  the 
notice  has  been  given  the  ditch  and  other  works  must  be 
begun  in  good  faith,  the  same  must  be  carried  forward  to 
its  completion  with  all  due  diligence.^ 

The  same  principle  also  applies  to  cases  where  parties  have 
filed  location  notices  for  reservoir  sites.  The  notices  must  be 
followed  up  with  reasonable  diligence  by  proceedings  to  con- 
demn the  property  for  that  purpose  (if  the  site  is  located  upon 
private  lands)  and  the  construction  of  the  reservoir.  A  loca- 
tion notice  without  subsequent  acts  to  accomplish  the  object 
named  in  the  notice  will  not  hold  the  site. 

As  to  whether  the  work  has  been  begun  within  a  reason- 
able time  after  the  notice  was  given,  and  prosecuted  with 
reasonable  diligence,  are  questions  of  fact  for  the  jury 
to  determine,  from  all  the  particulars  connected  with  each 
case. 2  And  on  this  question  of  due  and  reasonable  diligence, 
in  the  prosecution  of  the  construction  of  the  works,  the 
jury  may  take  into  consideration  all  the  circumstances 
surrounding  the  parties  connected  with  each  particular  case, 
at  the  date  of  the  appropriation,  such  as  the  climate 
of  the  countr)^  as  to  whether  the  work  can  be  prosecuted  con- 
tinuously all  the  year  round  or  only  for  a  few  months  of  the 
year,  the  phj^sical  condition  of  the  country  through  which  the 
canal  is  to  pass,  as  to  whether  the  same  is  level  or  rough,  and 
whether  the  soil  is  hard  or  easy  to  work  and  the  like,  and 
the  difficulty  of  obtaining  labor,  tools  or  material;  also  the  ex- 
tent and  magnitude  of  the  works  themselves.''    In  the  case  of 

lOsgoodvs.  El  Dorado  W.  Co..  reka  L.  Co.,  15  Cal.  271;  Kimball 

56  Cal.  571;  Kelly  vs.  Natoma  W.  vs.  Gearhart,  12  Cal.  27;  Elliott  vs. 

Co.,  6   Cal.    105;  Maeris  vs.  Bick-  Wliitmore,  (Utah);    24   Pac.   Rep. 

iiell,  7  Cal.  261;  King  vs.  Edwards,  672. 

I  Mont.  235;  Woolman  vs.  Gar-  spomeroy  Rip.  Rights,  Sec.  52; 
ringer,  i  Mont.  535;  Atchison  vs.  Gould  on  Waters,  Sec.  236;  Weaver 
Peterson,  i  Mont.  561;  Sieber  vs.  vs.  Eureka  Lake  Co.,  15  Cal.  271; 
Frink,  7  Colo.  148;  Ophir  S.  M.  Parke  vs.  Killham,  8  Cal.  77;  Luck- 
Co.  vs.  Carpenter,  4  Nev.  534;  Park  hart  vs.  Ogden,  30  Cal.  547;  Kim- 
vs.  Kilham,  8  Cal.  77;  Keeney  vs.  ball  vs.  Gearhart,  12  Cal.  30;  White 
Carillo,  2  N.  M.  480.  vs.   Todd's    Valley    Water   Co.,    8 

2  Osgood  vs.  El  Dorado  W.  Co.,  Cal.  444. 
56   Cal.  571,  581;  Weaver  vs.  Eu- 


§  160J.  APPROPRIATION    OF    WATER.  12-11) 

the  Ophir  Mining  Co.  vs.  Carpenter, ^  Lewis,  C.  J.,  in  deliver- 
ing the  opinion  of  the  Court,  says:     "When  any  work  is  nec- 
essary to  be  done  to  complete  the  appropriation  the  law  gives 
the  claimant  a  reasonable  time  within  which  to  do  it.     *     *     * 
Diligence  is  defined  to  be  'the  steady  application  to  business 
of  any  kind,  constant  effort  to  accomplish  any  undertaking.' 
The  law  does  not  require  any  unusual  or  extraordinary  efforts, 
but  that  which  is  usual,  ordinary  and  reasonable.     The  dili- 
gence required  in  cases  of  this  kind  is  that  constancy  or  steadi- 
ness of  purpose  or  labor,  which  is  usual  with  men  engaged  in 
like  enterprises,  and  who  desire  a  speedy  accomplishment  of 
their  designs.     Such  assiduity  in  the  prosecution  of  the  en- 
terprise as  wall  manifest  to  the  world,  a  bona  fide  intention  to 
complete  it  within  a  reasonable  time.     It  is  the  doing  of  an  act 
or  series  of  acts,  with  all  possible  expedition,  with  no  delay, 
except  such  as  may  be  incident  to  the  work  itself."     And  in 
the  same  opinion  it  was  also  held  that  neither  the  illness  of 
the  appropriator,  nor  his  want  of  pecuniary  means  to  prosecute 
the  work,  are  such  circumstances  as  wall  excuse  great  delay 
in  the  prosecution  of  the  work  and  completion  of  the  same 
from  the  fact  that  they  are  both  matters  incident  to  the  person, 
and  not  to  the  enterprise.     And  upon  this  point  the  Court 
said:     "  It  would  be  a  most  dangerous  doctrine  to  hold  that 
ill  health  or  pecuniary  inability  of  a  claimant  of  a  water  privi- 
lege will  dispense  with  the  necessity  of  actual  appropriation 
within  a  reasonable  time,  or  the  diligence  which  is  usually  re- 
quired in  the  prosecution  of  the  work  necessary  for  the  pur- 
pose.    We  find  no  recognition  of  such  doctrine  in  the  law. 
Nor  are  we  disposed  to  adopt  it  as  the  rule  to  govern  cases  of 
this  kind."     And,  in  general,  upon  this  last  point  it  may  be 
said,  that  it  is  also  a  questionof  fact  for  the  jury  as  to  whether 
the  party  attempting  to  make  an  appropriation  had  or  had  not 
the  command  of  the  pecuniary  means  requisite  to-complete  the 
same   within   a   reasonable   time.     And  if  the  appropriators 
projected  the  works  and  claimed  the  waters  in  dispute  with 
full   knowledge  of  their  pecuniary    inability  to  complete  the 
same,  within  a  reasonable  time,  tlien  they  cannot  urge  such 

I4  Nev.  544,  546. 


250  APPROPRIATION    OF    WATER.  [§  160,  161 

want  of  pecuniary  means  as  an  excuse  for  not  prosecuting  the 
work  with  reasonable  diligence,  and  completing  it  within  a 
reasonable  tinie.^ 

§  101.  Same. — Coiitiimed. — If,  after  notice  has  been  given 
of  the  intent  to  appropriate  the  waters  of  a  certain  stream,  a 
ditch  or  canal  is  begun  in  good  faith,  and  all  due  and  reason- 
able diligence  exercised  in  the  prosecution  of  the  same  to  its 
completion,  the  enjo3'ment  of  the  water  does  not  of  course 
commence  until  the  works  are  completed;  but,  as  against 
others  subsequently  attempting  an  appropriation,  the  right  to 
the  use  of  the  water  dates  back,  by  the  doctrine  of  relation, 
to  the  first  step  taken  to  appropriate  the  same.  If,  however, 
on  the  other  hand,  the  work  be  not  prosecuted  with  all  due 
and  reasonable  diligence  the  right  to  the  water  does  not  so 
relate  back  to  the  first  step,  but  generally  dates  from  the  time 
when  the  work  is  completed  and  the  water  applied  to  some 
beneficial  use  or  purpose,  or  in  other  words,  when  the  appro- 
priation is  fully  perfected.  It  therefore  follows,  that,  if  all 
or  a  portion  of  the  water  of  the  stream  has  been,  during 
the  course  of  the  delay  of  the  first  appropriator,  appropriated 
by  others  prior  to  the  completion  of  the  first  appropriator's 
ditch  or  canal,  where  the  work  upon  the  same  was  not  prose- 
cuted with  all  due  and  reasonable  diligence,  the  first  appro- 
priator has  either  lost  all  right  to  the  water  of  the  stream,  or 
he  must  take  any  water  of  the  stream  that  may  be  left,  sub- 
ject to  the  rights  acquired  by  others  who  have  intervened 
and  who  have  strictly  complied  with  all  the  conditions  of  the 
law.'-^  But,  although  one  may  not  have  completed  his  work 
for  diverting  or  using  the  water  and  therefore  has  not  com- 
pleted his  appropriation,  yet  he  has  a  right  to  the  use  of  so 
much  of  the  water  of  the  stream  as  may  be  necessary  to  pre- 

1  Kimball  vs.  Gearliart  12  Cal.  28.  vs.  Garringer,  i  Mont.  535;  Atchi- 

2  See  subject  of  Abandonment  son  vs.  Peterson,  i  Mont.  561; 
Post  Chapter  VIII.  Section  253-  Sieber  vs.  Frink,  7  Colo.  148;  2 
259;  OphirS.  M.  Co.  vs.  Carpenter,  Pac.  Rep.  901;  Irwine  vs.  Strait, 
4  Nev.  535;  Kelly  vs.  Natoma  18  Nev.  436;  Keeney  vs.  Carillo, 
Water  Co.,  6  Cal.  105;  Maeris  vs.  2  N.  M.  480;  Meggerle  vs.  Ashe, 
Bicknell,  7  Cal.  261;  King  vs.  33  Cal.  74;  Smith  vs.  Athern,  34 
Edwards,   i   Mont.  235;    Woohnan  Cal.  507. 


§  161].  APPROPRIATION    OF    WATER.  251 

vent  his  works  from  injury  while  in  the  process  of  construc- 
tion.^ And  where  a  party  has  taken  all  the  necessary  prelim- 
inary steps  for  an  appropriation  of  water  for  any  beneficial 
use  or  purpose,  and  has  used  due  diligence  in  constructing 
his  ditch,  which,  by  reason  of  obstructions  in  the  same  or 
irregularities  in  the  grade,  at  the  time  of  his  first  turning  in 
the  water,  is  not  capable  of  diverting  as  much  water  as 
its  general  size  would  indicate  the  law  will  grant  the  appro- 
priator  a  reasonable  time  to  adjust  the  grade  and  remove  such 
obstructions  and  to  fill  the  ditch  to  its  full  capacity,  pro- 
vided that  all  the  water  so  diverted  is  applied  to  some  bene- 
ficial use  or  purpose.  But,  on  the  other  hand,  if  he  continues 
to  divert  only  the  quantity  of  water  originally  diverted  by 
him  long  enough  to  indicate  that  he  onl}^  intended  to  take 
that  amount,  or  failed  for  an  unreasonable  length  of  time  to 
remove  the  obstruction  or  adjust  the  grade,  he  will  be  lim- 
ited to  the  amount  originally  diverted,  and  other  intervening 
appropriators  will  be  entitled  to  the  residue  of  the  water  flow- 
ing in  the  natural  stream.^  It  has  also  been  held  that  the 
object  in  view  at  the  time  when  the  water  was  first  diverted 
is  to  be  considered  in  connection  with  the  appropriation  actu- 
ally made,  provided,  of  course,  that  the  water  has  been 
diverted  with  due  and  reasonable  diligence,  and  that  the  ap- 
propriator  will  be  given  a  reasonable  time,  after  conducting 
the  water  to  the  point  where  it  is  needed,  to  apply  it  to  the 
use  intended.^ 

Under  the  later  decisions  relative  to  the  capacity  of  the  ditch 
being  the  limit  of  the  extent  of  the  appropriator's  rights  in  and 
to  the  waters  of  a  stream,  it  is  held  to  be  against  the  general 
policy  of  the  entire  modern  system  of  the  doctrine  of  appropri- 
ation that  the  greatest  good  shall  accrue  to  the  greatest  num- 
ber. For  if  this  was  the  law  upon  the  subject  a  person  might 
lay  claim  to  the  water  of  whole  rivers  for  the  ostensible  pur- 
pose of  irrigating  immense  tracts  of  lands,   which  with  the 

1  Weaver  vs.  Conger,  lo  Cal  233.  Dougherty  vs.  Haggin,  56  Cal.  522. 

2  White  vs.  Todd's  Valley  Water  JfConant  vs.  Jones,  (Idaho)  32 
Co.  8  Cal.  443;  liutte  Can.  &  I).  Pac.  Rep.  250;  Gould  on  Waters, 
Co.  vs.  Vaughn,  11  Cal.  153;  N.  C.  Sec.  236;  Barnes  vs.  Sabron,  10 
&  vS.  C.  Co.  vs.  Kidd,  37  Cal.  314;  Nev.  217. 


252  APPROPRIATION    OF    WATER.  [§  161,  162 

Utmost  diligence  it  would  take  years  to  accomplish;  and 
although  others  might  intervene  an  attempt  to  appro- 
priate the  water  of  a  stream  they  could  only  lay  claim  to  it 
for  a  temporary  period  of  time,  and  until  the  w^orks  of  the  first 
appropriator  were  eventuallj-  completed,  and  they  w-ould  then 
be  deprived  of  their  appropriation.  Thus  would  the  way 
for  speculation,  and  monopolj'  be  opened,  and  the  main  object 
of  the  law  defeated.  The  true  test  of  the  extent  of  an  appro- 
priator's  rights  in  and  to  the  waters  of  a  stream  is  the 
actual  amount  that  is  applied  without  waste  within  a  reason- 
able time  to  some  beneficial  use  or  purpose,  after  he  has 
given  notice  of  his  intention  to  appropriate  the  water. ^ 

§  102.  There  Must  l)e  an  Actual  Diversion  of  the  Water.— 

As  we  have  seen,  the  appropriation  entire  cannot  be  construc- 
tive;- so,  also,  no  step  which  it  is  necessary  to  take  to  make 
the  appropriation  complete  can  be  constructive.  As  the  w'hole 
theory  of  appropriation  for  beneficial  uses  is  based  merely 
upon  a  prior  possessory  right  to  the  water  entirely-  separate 
from  the  property  in  the  land  over  which  it  runs,^  and  no 
possession  or  exclusive  propertj'  can  be  acquired  while  it  is 
still  flowing  and  remaining  in  its  natural  channel  or  stream,^ 
it  follows,  therefore,  that  in  order  to  obtain  possession  of  the 
water  attempted  to  be  appropriated,  it  is  an  indispensible 
requisite  that  there  must  be  an  actual  diversion  of  the  water, 
from  its  natural  channel,  into  the  appropriator's  ditch,  canal, 
reser\^oir,  or  other  structure.^  So,  where  the  common  law 
forbids  a  diversion  of  the  water,  from  its  natural  channel, 
under  almost  any  circumstances  whatsoever,  the  law  of  the 
Pacific  States,  which  as  we  have  seen,  originated  entirely  with 
the  customs  of  the  miners,  makes  it  one  of  the  most  important 

1  See  Simnious  vs.  Winters,  21  -i  Parks  Canal  &  M.  Co.  vs.  Koyt, 
Ore.  35;  27  Pac.  Rep.  7;  Conant  57  Cal.  44;  Kidd  vs.  Laird,  15  Cal. 
vs.  Jones,  32  Pac.  Rep.  250.                     162. 

2  Gould  on  Waters,  Sec.  235,  5  Parks  Canal  &  M.  Co.  vs.  Hoyt, 
Coryell  vs.  Cain,  16  Cal.  567;  57  Cal.  44;  Kidd  vs.  Laird,  15  Cal. 
Kelly  vs.  Natonia  Water  Co.,  6  Cal.  162;  Dalton  vs.  Bowker,  8  Nev.  190; 
105.     See  also  Ante-section,  159.  Riverside    Water    Co.    vs.    Gage, 

SCrandall  vs.  Woods,  8  Cal.  143.       89  Cal.  410;  26  Pac.  Rep.  8S9. 


§  162,  163.]  APPROPRIATION    OF    WATER.  25^ 

steps  for  the  completion  of  an  appropriation,  and  an  absolute 
necessity,  in  order  to  acquire  an  exclusive  property*  in  the 
water. 

§163.  Same — Continued. — For  the  purpose  of  diversion, 
however,  flumes  constructed  at  different  parts  of  the  lines, 
cannot  change  the  general  character  of  the  works,  and  in  all 
legal  aspects  are  the  same  as  a  ditch  or  canal. ^  And  a  "  dry 
ravine  or  gulch  may  be  used  as  a  part  of  a  ditch,  with  the 
same  effect  as  though  the  structure  were  wholh-  artificial."  ^ 

In  Keeney  vs.  Carillo,-^  where  the  appropriator  built  a  ditch 
upon  the  public  lands,  which  conducted  the  water  to  a  point 
in  a  canyon  where  it  disappeared  under  ground,  coming  to  the 
surface  again  at  the  mouth  of  the  canyon,  it  was  held  by  the 
Supreme  Court  of  New  Mexico  that  the  appropriator  was 
entitled  to  be  protected  against  others  subsequent  to  him,  who 
had  dug  ditches  cutting  off  his  supply.  But  upon  the  other 
hand,  if  the  appropriator  returns  the  water  which  he  has 
diverted  back  into  the  natural  channel  of  the  stream,  without 
the  intention  of  "recapturing"  it,  he  will  be  held  to  have  made 
an  abandonment  of  all  further  rights  to  the  use  of  such 
water. ^  Again,  where  water  from  an  artificial  ditch  is  turned 
into  a  natural  water-course  and  mingled  with  the  natural 
waters  of  a  stream,  whether  the  same  is  the  stream  from  which 
it  was  originally  taken  or  not,  for  the  purpose  of  conducting 
it  to  another  point  lower  down,  to  be  there  used  by  the 
original  appropriator,  it  is  not  therebj^  abandoned,  but  may 
])e  taken  out  and  used  by  the  parties  thus  conducting  it,  pro- 
vided that  they  do  not,  in  so  doing,  diminish  the  quantity  of 
the  natural  waters  of  the  stream  by  taking  out  more  than 

1  Ellison  vs.  Jackson  Water  Co.,  Butte   Canal  Co.  vs.   Vaughn,    ii 

12  Cal.  542.  Cal.  143;  Eddy  vs.  Simpson,  3  Cal. 

SPomeroy  Rip.  Rij^lits   Sec.  48:  249;  Scliultz  vs.  Sweeny,  19  Nev. 

Hoffman  vs.  Stone,  7  Cal.  46;  Post  359;  11  Pac.  Rep.  253;    Dodge  vs. 

Chapter  VIII,  Sec.  246.     See  also  Marden, 7  Oregon  456;  Platte  Water 

statutory    enactment     upon    sub-  Co.  vs.  Northern  Colo.  Ir.  Co.   12 

ject  in  Part  II.  Colo.  525;  McCauley  vs.  McKeig, 

3  2  N.  M.  480.  8  Mont.  389;  Barkley  vs.  Tieleke, 

4  Woolnian  vs.  Garringer.i  IVIont.  2  Mont.  59. 
535;    Davis   vs.    Gale,    32    Cal.   26; 


254  APPROPRIATION    OF    WATER.  [^  163,  164 

their  share,  to  the  injury  of  those  who  have  previously  appro- 
priated such  natural  waters.^ 

But  the  burden  of  proof  devolves  upon  the  party  thus 
mingling  the  water  belonging  to  him  with  the  waters  of  a 
stream  that  have  been  appropriated  by  others.  He  must 
show^  clearly  to  what  portion  he  is  entitled.  He  can  only 
claim  and  redivert  such  portion  as  it  is  established  by  deci- 
sive proof  that  he  has  a  prior  right  to  the  use  of.  The 
enforcement  of  his  right  must  leave  the  opposite  party  in  the 
use  of  the  full  quantitj^  to  which  he  was  originall}^  entitled, 
and  the  party  conducting  the  water  in  this  method  to  a  point 
lower  down  the  stream  can  not  there  ' '  recapture  ' '  more  water 
than  he  is  entitled  to  above,  unless  it  is  done  subject  to  the 
rights  of  intervening  appropriators.'-^ 

§  164.  Tliere  must  be  an  Actual  Use  of  the  Water  Ajipro- 
priated. — The  final  element  necessary  to  complete  the  appro- 
priation is  an  application  of  all  of  the  water  attempted  to  be 
appropriated  to  some  beneficial  use  or  purpose.  Not  only 
must  there  be  an  hitent  to  apply  the  water  to  some  such  pur- 
pose, but  as  the  consummation  of  that  intention  it  must  be 
achially  applied  within  a  reasonable  time;  and  as  to  whether 
this  has  been  done  is  a  question  of  fact  for  the  jury  to 
determine  from  all  the  circumstances  of  the  case.^  On  the 
other  hand  the  notice  of  appropriation  may  have  been  properly 
given  according  to  law,  the  works  for  conducting  the  water 
constructed  within  a  reasonable  time,  the  water  diverted  from 
its  natural  channel,  and  yet  if  the  water  is  not  actually  applied 

1  Butte  C.  &D.  Co.  vs. Vaughn,  II  7  Cal.  261;    Combs    vs.    Ag.  Ditch 

Col.  143;  Richardson  vs.  Kier,   37  Co.,    17   Colo.    146;   28   Pac.    Rep. 

Cal.  263.  966.       Priority     of     appropriation 

2 Ibid.  Hoffman  vs.  Stone,  7  Cal.  shall  determine  the  right  to  water 
46;  Butte  Canal  Co.  vs.  Vaughn,  it  of  a  natural  stream,  but  there  is 
Cal.  143;  Davis  vs.  Gale,  32  Cal.  no  appropriation  until  it  is  applied 
26;  Kllis  vs.  Tone,  58  Cal.  2S9;  to  some  beneficial  use.  Farmers' 
Schultz  vs.  Sweeny,  19  Nev.  359;  High  Line  Canal  Co.  vs.  South- 
Burnett  vs.  Whiteside,  15  Cal.  35;  worth,  13  Colo,  iii;  4!,.  R.  A.  767; 
Wilcox  vs.  Hausch,  69  Cal.  461;  21  Pac.  Rep.  1028;  Peregoy  vs. 
See  Chapter  VIII,  Section  246.  McKissick,    79   Cal.    575;    21    Pac. 

SSieber  vs.  Frink,  7  Colo.  148;  2  Rep.  967. 
Pac.  Rep.  901;  Maeris  vs.  Bicknell, 


§  164.]  APPROPRIATION    OF    WATER.  255 

to    a   beneficial    purpose    or    use.    witliout    delay,    no    legal 
appropriation  has  been  made.^     The  true  test  as  to  whether 
the  appropriation  is  a  valid  one  is  the  application  of  the  water 
to  some  beneficial  use  or  purpose.     And  an}'  delay  for  an 
unreasonable  time  in  its  application,  or  a  failure  for  a  time  to 
use  the  water,  if  it  has  once  been  applied,  is  competent  evi- 
dence on  the  question  of  abandonment;  and  if  such  non-use 
be  continued  for  an  unreasonable  period,  it  may  fairly  create 
a   presumption   of  intention    to    abandon.^      But   under   the 
decisions  the  appropriators  of  water  for  the  purposes  of  irri- 
gation will  be  given  a  reasonable  time  after  conducting  the 
water  to  a  point  where  it  is  to  be  used  to  apply  it  to  the  use 
intended.'^     But    as  has  been  stated,  this  use  to  which  the 
water  may  be  applied  is  any  use  or  purpose  for  which  water 
is  needed  to  supply  the  natural  and  artificial  wants  of  man, 
provided  that  it  be  a  beneficial  one.^    And  also  one  may  intend 
to  apply  the  water  to  a  certain  purpose,  when  he  takes  the  first 
steps  for  an  appropriation,  and  immediately  upon  the  diversion 
of  the  same  apply  it  to  some  entirely  different  purpose,  with- 
out prejudicing  the  rights  acquired  by  him,  provided  he  con- 
tinues the  application  to  some  beneficial  purpose.    Also,  when 
the  water  has  been  lawfully  appropriated,  and  applied  to  some 
one  of  the  beneficial  uses,  the  priority  once  thereby  acquired 
is  not  lost,  if  the  appropriator  changes  the  use  for  which  it 
was  first  appropriated  and  applied,  provided  there  is  no  un- 
reasonable delay  in  the  change.'^     A  beneficial  use,  without 
regard  to  the  nature  thereof,  will  sustain  the  right  by  appro- 
priation, but  the  nature  of  the  use  may  be  important  as  denot- 
ing the  extent  of  the  appropriation  and  the  amount  of  water 
that  can  be  held  under  it." 

llbid.      Maeris   vs.    P,icknell,    7  ^  See  Ante  Section  150,  and  cases 

Cal.  261;  McKinney  vs.  Smith,  21       cited. 

Cal.    374;   Thomas  vs.  Guiraud,  6  5  Ante  vSection  154;  also  see  vSecs. 

Colo.  540.  223-237,   and  cases  cited.     Maeris 

2  Davis    vs.    Gale,    32    Cal.    26;       vs.   Bicknell,   7  Cal.  261,   Hill  vs. 

Sieber;  vs.  Frink,  7  Colo.  14B.  Smith,    27  Cal.   476;    Thomas   vs. 

SConant   vs.  Jones  (Id.)  32   Pac.       Guirard,  6  Colo.  530. 
Rep.  250;  Fort   Morgan   Land  Co.  o  McDonald   vs.  Bear   River   W. 

vs.  South  Platte  Ditch  Co.,  (Colo.)       &   M.  Co.,  13  Cal.  220.     See   also 
30  Pac.  Rep.  1032;  Combs,  vs.  Ag.       Chapter  VIII.  Sections  230-237. 
D.  Co. ,17  Colo.  146;  28  Pac. Rep. 966. 


256  APPROPRIATION    OF    WATER.  [§  165 

§  165.  All  of  the  Water  Appropriated  Must  be  Used.— 

In  the  earh'  da3'S  prior  appropriation  was  esteemed  to  cover 
all  in  sight,  even  to  the  entire  amount  of  water  flowing  in  a 
natural  stream,  whether  the  same  was  actually  used  or  not. 
In  order  to  irrigate  his  land  or  to  work  his  mine  the  appro- 
priator  might  claim  the  right  to  all  of  the  water  flowing  in  a 
certain  stream,  although  the  same  might  have  been  many 
times  the  amount  that  w^as  actually  needed  for  the  purpose  for 
which  he  made  the  appropriation.  The  early  irrigators,  hav- 
ing no  knowledge,  even  in  the  slightest  degree,  of  the  proper 
application  of  water  for  irrigating  their  crops;  and  there 
being  at  that  time  nothing  written  upon  the  subject,  and,  as 
there  was  a  ver}'  plentiful  supply  of  water  in  the  streams  for 
those  who  wished  to  use  it,  it  followed  as  a  matter  of  course 
that  the}'  adopted  ver}'  wasteful  methods  in  their  lavish  use  of 
the  water.  But  little  cultivation  of  the  land  was  thought 
necessary  if  the  ground  was  kept  saturated.  As  time  went  on, 
however,  more  settlers  of  the  agricultural  class  came  into  the 
arid  region  and  a  great  many  miners  also  abandoned  their 
search  for  gold  and  turned  their  attention  to  agriculture. 
Hence,  it  did  not  require  any  great  length  of  time  in  order  to 
allow  the  settlers  in  many  places  to  appropriate  all  the  waters 
in  the  streams  under  the  wasteful  methods  used, and  apportion 
it  among  themselves.  And  with  the  then  prevalent  lavish  use 
of  water  the  area  of  land  put  under  actual  cultivation  was 
comparatively  small  to  what  it  might  have  been  wdth  the  same 
supply  of  water  had  ordinary  care  been  taken  in  its  distribu- 
tion. And,  as  there  was  a  continual  demand  for  more  water 
as  more  land  was  taken  up  and  cultivated,  in  the  process  of 
time,  owing  to  this  demand,  many  old  ideas  upon  the  subject 
of  irrigation  were  exploded,  and  it  was  found  that  a  given 
amount  of  water  could  be  made  to  go  further  and  with  far 
better  results  than  the  early  settlers  had  any  idea  of.  In 
many  cases  it  was  demonstrated  by  actual  experiment  that 
five  or  six  times  as  much  land  could  be  irrigated  with  a  cer- 
tain amount  of  water  and  with  better  results  as  far  as  amount 
and  quality  of  crops  were  concerned  than  had  been  thought 
possible  before. 


§  16(3,  167J.  APPROPRIATIOX    OF    AVATER.  257 

§  l(iO.  Same.— Coiitiiuied.— When  these  possibilities  be- 
came known,  as  above  set  forth,  and  the  population  had 
greatly  increased,  there  came  a  time  when  so  manj^  wanted 
water  for  irrigation  and  other  purposes  that  some  sys- 
tematic plan  was  demanded,  and  had  to  be  settled  upon  for 
its  distribution  other  than  the  wasteful  methods,  or  rather  the 
lack  of  methods,  that  had  hitherto  prevailed.  So  the  legis- 
latures of  many  of  the  Pacific  States  and  Territories,  and  the 
Courts  of  all,  soon  put  an  end  to  these  selfish  and  wasteful 
methods,  and  the  principle  of  "  beneficial  uses  "  was  adopted. 
Water  is  too  precious  an  article  in  the  arid  region  to  be  per- 
mitted to  run  to  waste,  and  the  great  weight  of  modern  au- 
thorities hold  that  where  a  person  has  diverted  a  certain  por- 
tion of  the  waters  of  a  stream,  and  permits  part  of  the  water, 
so  diverted,  to  run  to  waste,  or  fails  to  use  a  certain  portion  of 
the  water  for  some  beneficial  use  or  purpose,  he  can  only  hold 
that  part  of  the  water  diverted  which  has  been  actually  ap- 
plied to  some  beneficial  use;  and  his  priority  only  extends  to 
the  quantity  so  used.  Also  the  authorities  hold  that  there 
was  no  appropriation  as  to  the  water  not  used,  and  which  ran 
to  waste,  but  that  the  same  might  be  subsequently  appropri- 
ated and  held  by  other  parties,  provided  they  took  all  the 
proper  steps,  and  they  themselves  applied  it  to  some  beneficial 
use  or  purpose.  The  final  test  in  all  cases  being  whether  all 
of  the  water  diverted  is  actually  applied  to  some  useful  or 
beneficial  purpose.^ 

§  167.  Wlien  the  Apinopiiation  Is  Complete.— The  ap- 
propriation becomes  perfect  only  when  the  ditches  or  canals 
are  completed,  the  water  diverted  from  its  natural  stream  or 

1  In  Sieber  vs.  Frink,  7C0I0.  148;  Gcial  use  upon   the    Brown   land. 

2  Pac.  Rep.   904,    the  Court   said:  If  this  be  the  fact,  plaintiffs  are 

"Of  the  quantity  applied  to  irriga-  07ily  entitled  to  priority  for  the 

lion  of  the    Brown    ranch,  we   are  quantity  so  used.''' 

not  satisfactorily  advised.     There  See  also  Combs  vs.  Agricultural 

is  some  proof  that  the  water  ran  Ditch  Co.,  17  Colo.  146;  28  Pac.  Rep. 

to  waste  at  the  end  of   the  ditch;  966,  where  it  was  held  that  an  ex- 

and  it   may   be  that   in  1871,  and  cessive  diversion  of  water  cannot 

during  the  succeeding  four  j'ears,  be  regarded  as   a  diversion  of   it 

but  a   part  of  the  water  diverted  for  a  beneficial  use. 
was  actually    applied    to   a    bene- 


258  APPROPRIATION    OF    WATER.  [§  167 

channel,  and  actually  used  for  beneficial  purposes.^  Pomeroy 
does  not  state  the  rule  to  be  quite  the  same  as  above  stated, 
holding  that  the  completion  of  the  ditch,  so  that  the  actual 
use  of  the  water  can  be  commenced,  is  sufficient  to  hold  the 
appropriation. 2  But  we  must  remember  that  laws  relative  to 
the  subject  of  irrigation  have  been  and  even  are  now  in  a  state 
of  transition,  and  the  later  authorities  hold  that  before  the  ap- 
propriation is  complete  the  water  must  be  actually  used  within 
a  reasonable  time  after  the  works  are  completed.  Upon  this 
subject  Chief  Justice  Hayt,  of  the  Supreme  Court  of  Colorado, 
in  the  opinion  in  the  case  of  Fort  Morgan  Land  Company  vs. 
South  Platte  Ditch  Company,  says:  "The  Court  holds  that 
they  must  not  only  take  the  water  out  of  the  stream,  but  must 
prove  the  regular  use  of  it  for  irrigation.  From  the  first  this 
Court  recognized  and  emphasized  the  idea  that  priority  can 
only  be  legall}^  acquired  by  the  application  of  the  water  to 
some  beneficial  use.  Hence  there  must  not  only  be  a  diver- 
sion of  the  water  from  the  natural  stream,  but  the  actual  appli- 
cation of  it  to  the  soil  to  constitute  a  constitutional  appropria- 
tion recognized  for  irrigation .  "-^  The  above  opinion  shows  the 
tendency  of  the  Courts  in  modern  times  not  to  allow  any 
water  to  run  to  waste  by  means  of  pretended  appropriations 
where  the  same  are  not  completed  and  the  water  has  not  been 
actually  used  for  some  one  of  the  beneficial  purposes.  And 
water  rights  attempted  to  be  held  in  this  manner  without 
actual  use  are  subject  to  appropriation  by  other  parties  on  the 
ground  that  no  appropriation  has  been  made."*  While  the  ap- 
propriator's  dam  and  canal  are  in  the  process  of  construction, 
but  he  is  not  yet  ready  to  actually  use  the  water  for  the  purpose 
intended,  its  use  by  other  persons  causes  no  injury  to  the  first 


1  Maeris  vs.  Bicknell,  7  Cal.  261;  2  Ponieroy   on   Riparian   Rights, 

Thomas  vs.  Guirand.,  6  Colo.  530;  Sec.  53. 

Kelly   vs.    Natoma   Water  Co.,    6  3  Colo.;  30  Pac.  Rep.  1032;  Farm- 

Cal.  105;    Fort  Morgan  Land  Co.  ers'    High    L.    Canal    vs.    South- 

vs.  South  Platte  D.  Co.,  (Colo.),  30  worth,  13  Colo,  iii;  4L.  R.  A.  765; 

Pac.  Rep.   1032;    Combs  vs.  Agri-  21  Pac.  Rep.  1028. 

ciil.  D.  Co.,  17  Colo.  146;  28  Pac.  4  ibid. 
Rep.  966;  Conantvs.  Jones,  (Idaho) 
32  Pac.  Rep.  250. 


§  167,  168].         APPROPRIATION    OF    WATER.  259 

appropriator  and  gives  him  no  cause  of  action  for  relief,  either 
equitable  or  legal,  from  the  fact  that  his  works  are  not  in  a  con- 
dition to  divert  the  water. ^  But  the  prior  appropriator  has  the 
right  to  use  so  much  of  the  water  as  is  necessary  to  preserve 
his  flume  or  works  from  injury-  while  in  the  process  of  con- 
struction.^ 


§  168.  Doctrine  of  Reljition. — As  we  have  seen  in  the  pre- 
vious sections,  an  appropriation  does  not  become  final  and 
perfect  until  the  works  for  conducting  the  water  are  completed, 
and  the  water  actuall)^  used  for  some  beneficial  use  or  purpose. 
But  when,  however,  the  right  to  appropriate  the  water  has 
been  once  perfected,  b}^  taking  all  the  necessary  steps  for  the 
same,  as  above  set  forth,  should  anj-  question  of  priority 
between  the  first  appropriator  and  other  parties  claiming 
rights  to  the  water  of  the  same  stream  arise,  the  doctrine  of 
relation  is  applied  to  settle  and  determine  the  question  of 
priority.  The  rule  of  law  is,  as  laid  down  by  decisions, 
that  if  the  first  appropriator  had  given  notice  in  accordance 
with  law,  of  his  intention  to  appropriate  the  water  of  a  cer- 
tain stream,  and  his  works  for  diverting  the  same  were  begun 
in  good  faith  and  carried  forward  and  prosecuted  with  all  due 


1  Nevada,  etc.,  vs.  Kidd,  37  Cal.  of  a  stream   have  been  appropri- 

282,  vvf here  the  Court  held:  A  Court  ated  is  out  of  repair,  and  not  in 

of    Equity   will    not   restrain    the  condition  to  carry  any  water,  an 

diversion   of  water  by  injunction  action  will  not  lie,  to  abate  as  a 

until  the  party  complaining  is  in  nuisance   a   reservoir  constructed 

a  condition  to  use  it.     While  the  across  the  bed  of  the  stream,  above 

dam  and  canal  of  the  party  claim-  the  head  of  the   ditch,  by  which 

ingthe  water  are  in  process  of  con-  the  water  of  the  stream  is  collected 

struction  but  are  not  yet  in  a  con-  and  detained,  and  caused  to  over- 

dition  to  receive  the  water  the  use  flow  unequally. 

of  the  water  by  other  parties  is  no  Brown   vs.  Smith,   10   Cal.    508; 

injury,   and   such   use   affords  no  Harvey   vs.  Chilton,   11   Cal.    114; 

ground    for    relief    legal    or  equi-  Union  Water  Co.  vs.  Crary,  25  Cal. 

table.  504. 

And  in  Hear  River  Co.  vs.  Boles,  2  Weaver  vs.  Conger,  10  Cal.  233; 

24    Cal.    395,    it    was    held    that  :  6  Cal.  548. 
While  a  ditch  by  which  the  waters 


260  APPROPRIATION    OF    WATER.  [§  168 

and  reasonable  diligence  to  their  completion,  then  the  first 
appropriator  acquires  an  exclusive  prior  right  to  divert  the 
water  as  regards  others  subsequent  to  the  date  of  notice, 
which  right  dates  back  by  relation  to  the  time  the  first  step 
was  taken,  as  the  law  allows  a  reasonable  time  for  him  to 
complete  his  appropriation  by  diverting  and  using  the  water 
for  some  beneficial  use  or  purpose.^  This  is  true  although  the 
water  may  have  been  actually  diverted  by  other  parties,  sub- 
sequent to  the  posting  of  the  notices  of  the  first,  but  prior  to 
the  completion  of  the  ditch.  Upon  this  point  the  Supreme 
Court  of  Montana  said  in  Woolman  vs.  Garringer,'-^  "  The 
notices  posted  on  the  stream,  of  the  appropriation  of  so  much 
water,  for  general  mining  purposes,  and  the  immediate  enter- 
ing upon  the  continued  prosecution  of  the  construction  of  the 
dam  and  ditch,  and  its  extension  or  branches,  were  sufficient 
to  put  the  plaintiffs  on  their  guard,  and  to  apprise  them  of 
the  prior  appropriation  of  the  defendants  and  of  their  riparian 
rights  to  the  premises.  And  from  these  facts  they  were  bound 
to  take  and  were  charged  with  notice  of  the  defendants  prior 
appropriation,  and  if  the}'  then  proceeded,  it  was  at  their  own 
option  and  peril.  Nor  were  the  defendants  required  to  take 
notice  of  any  subsequent  appropriation  by  the  plaintiffs." 

The  authorities  seem  to  differ  upon  the  point  as  to  whether 
the  right  relates  back  to  the  time  of  commencing  the  work 
upon  the  ditch  or  canal,  or  still  farther  back  to  the  posting  of 
the  notices.  As  the  notice  is  the  initial  step,  and  in  these 
later  times  an  absolutely  essential  one,  in  an  entire  continuous 
proceeding,  there  seems  to  be  no  good  reason  why  the  rela- 
tion should  not  extend  back  to  the  time  of  giving  the  same. 


ilbid.     Earhardt  vs.  Boaro,    113  8   Cal.  77;  Kimball  vs.  Gearbart, 

U.    S.     527;     Kelly     vs.     Natoma  12  Cal.  27;  Opbir  Silver  M.  Co.  vs. 

Water  Co.,  6  Cal.   105;  Maeris  vs.  Carpenter,    4  Nev.  534;  Irwin  vs. 

Bicknell,  7  Cal.  261;  King  vs.  Ed-  Strait,    18   Nev.  436;  4  Pac.  Rep. 

wards,  i  Mont.  235;  Woolman  vs.  12 15,    Pomeroy   on    Rip.    Rights, 

Garringer,  i  Mont.  35;  Atchinson  vSec.   54;  Angell   on  Waters,    Sec. 

vs.  Peterson,  i  Mont.  561;  20  Wall.  236. 
507;  Siebert  vs.  Friuk,  7  Colo.  148;  2  i  Mont.  535. 

2  Pac.  Rep.  901;  Parke  vs.  Killiam, 


§168,  169|.  APPROPRIATION    OF    WATKR.  261 

However,  some  of  the  early  cases  use  the  expression,  that  the 
right  relates  back  to  the  time  of  "commencing- the  work." 
But  in  our  opinion,  the  giving  of  notices  should  be  construed 
as  a  part  of  the  work,  as  otherwise,  the  right  of  another 
claimant  could  intervene  between  the  date  of  the  first  appro- 
priator's  notice,  and  the  reasonable  time  allowed  for  the  com- 
mencement of  the  work  upon  the  ditch,  no  matter  how  short 
the  interval.  The  majority  of  the  States  and  Territories  of  the 
arid  region,  have  disposed  of  this  uncertainty,  by  legislative 
enactment,  making  the  rights  of  an  appropriator  from 
the  posting  and  filing  of  the  notice  if  the  law  has  been  com- 
plied with  in  all  other  respects. ^ 

§  169.  Same— Continued.— If,  however,  there  wa^  unreason- 
able delay  in  commencing  the  work,  and  it  was  not  prosecuted 
to  its  completion  with  all  due  and  reasonable  diligence,  the 
right  to  use  the  water  dates  only  from  the  time  when  the 
appropriation  was  fully  perfected  and  the  diversion  of  the 
water  had  actually  begun  and  was  being  used  for  some  useful 
purpose;  and  it  does  not  in  this  case  relate  back  to  the  time 
when  the  first  step  to  secure  it  was  taken.^  So,  if  the  first 
party  giving  notice  is  negligent  in  prosecuting  the  works 
necessary  for  the  diversion  of  the  water,  and  he  finds  when 
the  same  are  finally  completed  that  all  the  water  of  the 
stream  has  been  appropriated  subsequently  to  the  time  of  his 

1  See  Statutes  of  various  States  by  means  of  which  the  appro- 
upon  subject  of  relation  in  Part  priatioii  is  effected,  provided  the 
Second.  See  sub.  Relation,  Chap-  enterprise  is  prosecuted  with  rea- 
ter  VII.  Sections  184,  189,  208-220.  sonable  diligence;  and  in  review- 
Contra,  see  Irwin  vs.  Strait,  t8  ing  the  evidence,  that  a  delay  for 
Nev.  436;  4  Pac.  Rep.  1215,  where  one  season,  in  not  using  the  water 
the  Court  in  determining  the  ques-  was  not  unreasonable.  See  also 
lion  of  the  time  when  the  right  to  Simpson  vs.  Williams,  17  Nev.  432. 
water  by  appropriation  commen-  2  Ophir  Mining  Co.  vs.  Carpen- 
ces,  held,  the  law  does  not  restrict  ter,  4  Nev.  534;  Irwin  vs,  Strait,  18 
the  appropriator  to  the  date  of  his  Nev.  436;  Keeney  vs.  Carillo,  2 
use  of  the  water,  but  applying  the  N.  M.  480;  iMaggerle  vs.  Ashe,  33 
doctrine  of  relation,  fixes  it  as  of  Cal.  74;  Smilli  vs.  Atlicrn,  34  Cal. 
the  time  when  he  begins  his  dam,  507. 
ditch,  flume,   or    other   appliance. 


262  APPROPRIATION    OF    WATER.  [§  169,  170 

giving  notice  by  parties  who  have  strictly  complied  with  the 
law  in  all  respects,  he  can  blame  no  one  but  himself.^  This 
subject  is  very  fully  discussed  in  the  case  of  Ophir  S.  M.  Co. 
vs.  Carpenter, 2  in  which  the  Court  said:  "  Where  the  right  to 
the  use  of  running  water  is  based  upon  appropriation,  and  not 
upon  an  ownership  in  the  soil,  it  is  the  generally  recognized 
rule  here  that  priority  of  appropriation  gives  the  superior 
right.  When  any  work  is  necessary  to  be  done  to  complete 
the  appropriation,  the  law  gives  the  claimant  a  reasonable 
time  within  which  to  do  it,  and  although  the  appropriation  is 
not  deemed  complete  until  the  actual  diversion  or  use  of  the 
water,  still  if  such  work  be  prosecuted  with  reasonable  dili- 
gence, the  right  relates  to  the  time  when  the  first  step  was 
taken  to  secure  it.  If,  however,  the  work  be  not  prosecuted 
with  diligence  the  right  does  not  so  relate,  but  generally  dates 
from  the  time  when  the  work  is  completed  or  the  appropria- 
tion is  fully  perfected."  ^ 

§170.  Modification  of  Above  Rules  by  Local  Law. — The 

above  rules  laid  down,  as  to  how  an  appropriation  may  be 
effected,  are  the  general  laws  upon  the  subject  relating  to  the 
appropriation  of  waters  flowing  over  the  public  lands  of  the 
United  States,  for  the  purpose  of  applj'ing  the  same  to  some 
beneficial  use  or  purpose.  These  rules  are  varied  somewhat 
regarding  the  methods  of  acquiring  water  rights  by  the  local 
laws  of  the  various  States  and  Territories  that  are  formed  out 
of  the  arid  region.  But  we  may  safely  say  that  in  all  these 
States  and  Territories  the  same  principle  of  priority  is  at  the 
very  foundation  of  the  appropriation.  The  appropriator  who 
is  prior  in  time  has  the  superior  right.  Also  the  principle 
that  the  water  diverted  can  only  be  held  as  a  valid  appropri- 
ation by  the  application  of  the  same  to  some  beneficial  use  or 
purpose,  is  now  as  firmly  established  in  all  the  States  and 
Territories,  as  the  principle  of  priority.  The  greatest  modi- 
fication of  the  rules,  as  set  forth  in  this  chapter,  then,  are  the 

llbid.  236   and    note;    see    Post   Chapter 

24  Nev.  534.  Section  VII,  184. 

3 See    Gould  on   Waters,  Section 


§  170,  171].         APPROPRIATION    OF    WATER.  263 

local  statutes  of  the  various  States  and  Territories  prescribing 
the  specific  steps  that  must  be  taken  in  order  to  acquire  a 
valid  water-right  within  their  respective  jurisdictions. 

These  local  laws,  as  will  be  seen  in  a  subsequent  portion  of 
this  work,  vary  in  the  diflferent  States  quite  extensivel3^ 
according  to  the  supply  and  demand  of  water,  the  topograph- 
ical and  physical  features  of  the  country,  the  objects  for  which 
the  water  is  to  be  used,  and  various  other  matters  that  are 
supposed,  at  least,  to  be  of  local  importance.  In  some  of  the 
States  and  Territories  practically  no  statutory  laws  have  been 
enacted  regarding  the  use  of  water,  while  in  others  the  most  elab- 
orate rules  are  laid  down  which  attempt  to  cover  all  branches  of 
the  subject.  But  simply  a  glance  at  some  of  them  will  be  suffi- 
cient to  show  the  most  cursor}^  reader  that  there  is  still  room 
for  a  great  deal  of  legislative  improvement  upon  the  subject. 
These  statutor}-  laws  will  be  discussed  under  their  respective 
heads  in  another  portion  of  this  work.^ 

§  171.  Summary  of  Chapter. — In  this  chapter  we  have 
seen  that  at  the  very  inception  of  a  valid  appropriation  of  water 
from  a  natural  stream  or  lake,  there  must  be  a  bona  fide  inten- 
tion upon  the  part  of  the  one  attempting  to  appropriate  the 
water,  to  apply  the  same  when  his  appropriation  is  completed 
to  some  of  the  beneficial  uses  or  purposes;  there  must  also  be 
sufficient  notice  to  the  public  of  that  intent  to  appropriate  the 
water  to  put  a  reasonable  man  upon  his  guard;  and  within  a 
reasonable  time  after  the  notice  has  been  given  the  appropri- 
ator  must  commence  his  works  for  the  actual  diversion  of  the 
water,  and  the  same  must  be  prosecuted  until  they  are  com- 
pleted, with  all  due  and  reasonable  diligence;  then  there 
must  be  an  actual  diversion  of  the  water  into  the  ditches  and 
works  of  the  appropriator;  then  all  of  the  water,  when  so 
diverted,  must  be  applied  to  some  one  of  the  beneficial  or  use- 
ful purposes.  We  have  also  seen  that  when  the  appropriation  is 
completed,  if  the  work  or  the  diversion  of  the  water  has  been 
prosecuted  vnth  all  due  and  reasonable  diligence,  by  the  doc- 
trine of  relation    the  api)ropriation  relates  liack,  as    against 

1  See  Part  Second. 


264  APPROPRIATION    OF    WATER.  [§  171 

the  rights  of  all  others  subsequently  attempting  to  appropriate 
the  waters  of  the  same  stream,  to  the  time  when  the  first  step 
was  taken — or  in  other  words,  the  notice  of  the  appropriation 
was  given. 


CHAPTER  VII. 
Rights  Acquired  of  Appropriators  as  Against  Others. 


176. 
177. 

178. 

179. 


Section. — 

172.  Scope  of  present  chapter. 

I.    RIGHTS  ACQUIRED   IN   WATERS 

BY     ONE     APPROPRI.A.TOR     AS 

AGAINST   OTHER   APPRO- 

PRIATORS. 

173.  The  prior  appropriator. 

174.  vSame.— Basey  vs.  Gallagher. 

175.  Rights  of  subsequent  appro- 

priators — in  general. 

Same. — Continued. 

vSubsequent  periodical  appro- 
priations. 

Same.— .\uthoritie  s  dis- 
cussed. 

Appropriation  of  surplus 
or  residue  of  water. 

180.  Same. — Authorities    dis- 

cussed. 

181.  Successive  appropriations. 

182.  Subsequent  appropriation 

before  the  works  of  the  fir.st 
appropriator  are  complete. 

183.  Distribution    of   increase    in 

volume  of  stream. 

184.  Doctrine    of   relation   as   be- 

tween appropriators. 

II.    APPROPRIATION     AS     AGAINST 

A   CONGRESSIONAIv   GRANT   OE 

THE   GOVERNMENT. 

185.  Appropriation    as    against    a 

Congressional     grant  —  In 
general. 


Section. — 

186.  Same. — Continued. 

187.  Decisions  on  subject. 

188.  Converse  of  doctrine. 

189.  Doctrine   of   Relation  as  ap- 

plied to   Congressional 
grants. 

III.  CONTROVERSIES    BETWEEN' 

CONFLICTING   GRANTS. 

190.  Conflicting  grants. 

IV.  APPROPRIATION     AS    AGAINST 
CONFLICTING  CLAIMS  OF  SET- 
TLERS  ON    LANDS. 


191. 
192. 

193- 
194. 

195- 

196. 
197. 

198. 
199. 


Riparian  rights  in  Arid 
Region. 

Government  patents  in  the 
absence  of  statute. 

The  principle  upon  which  the 
proposition  was  based. 

Same. — Continued. 

Same. — Authorities  on  this 
side  di.scussed. 

vSame. — Continued. 

Comments  upon  above  rul- 
ings. 

Criticism  of  Vansickle  vs. 
Haines,  and  the  doctrine 
therein  expressed. 

Same. —  Authorities  dis- 
cussed. 

Same— Same.-  Common  law 
of  ijigland. 


266 


RIGHTS    OF    APPROPRIATORS. 


[§172 


20I. 


202. 


20 


204. 


Section. — 

Same. — Common  law  of  Eng- 
land.— Adopted  when. 

Same. — Criticism   of   Van- 

■  sickle  vs.  Haines  continued. 

Sa  me  —  S  a  m  e. — Authorities 
discussed. 

Same  —  Same. — Jones  vs. 
Adams. 

205.  Same. — Reno  Smelting,  Mill- 

ing  and   Reduction   Works 
vs.  Stevenson. 

206.  Same. — Conclusions. 

207.  The  rule  subsequent  to   the 

act  of  1866. 
20S.  The   doctrine  of   relation   as 
applied  to  patentees. 
Same. — Continued. 
Same.— Continued. 
Prof.  Pomero}'  upon  this  sub- 
ject. 
212.  Same. — Authorities    on    sub- 
ject discussed. 


209 
210, 
211 


Section, — 

213.  Decisions   following   that   of 

Farley  vs.  S.  M.  &  Ir.  Co. 

214.  Decisions  modifying  rule  laid 

down  in  Farley  vs.  S.  V.  M. 
&  Ir.  Co. 

215.  Decisions  holding   clearly 

against  the  rule  in  the  Far- 
ley case. 

216.  Same. — Ruling  of  the    Land 

OfBce  upon  the  subject. 

217.  Same. — Land     Office    sus- 

tained    by    the     Supreme 
Court  of  the  United  States. 

218.  Same. — Discussion     Con- 

tinued. 

219.  Sturr  vs.  Beck. 

220.  Same. — Concluding   remarks 

upon  the  subject 

221.  Summary  of  the  chapter. 


§  172.  Scope  ol*  Present  Chapter. — The  present  chapter 
will  be  devoted  to  a  discussion  of  the  rights  acquired  by 
appropriators  of  water,  as  against  others,  under  the  following 
divisions  of  the  subject:  First,  the  rights  acquired  by  persons 
who  claim  the  waters  of  a  stream  or  lake  flowing  through  the 
public  lands  by  virtue,  mereh',  of  an  appropriation  Of  the 
water  itself.  Second,  The  rights  acquired  by  the  appropria- 
tion of  water,  as  against  a  Congressional  grantee  of  the  Gov- 
ernment, both  prior  and  subsequent  to  the  appropriation. 
Third,  The  rights  acquired  in  waters  flowing  over  the  lands 
granted,  where  there  is  a  controvers}^  regarding  the  same 
between  Congressional  grantees.  Fourth,  Questions  incontro- 
vers}'  between  those  who  claim  the  waters  of  a  stream  by  mere 
appropriation,  as  against  settlers  upon  the  public  lands  who 
acquired  their  title,  which  finalh^  culminated  in  a  patent  to 
lands  bordering  upon  the  streams,  by  the  regular  disposal  of 
them  through  the  land  office. 


§  173]. 


RIGHTS    OF    APPROPRIATORS. 


267 


I.  Riglits  Acquired  in  Waleis  by  one  Appropriator,  us 
against  other  Appropriators. 

§  173.  The  prior  Appropriator.— As  between  persons  who 
claim  the  waters  of  streams  or  lakes  flowing  through  the  pub- 
lic lands,  merely  by  prior  appropriations  of  the  water  itself, 
he  who  is  first  in  time  has  the  best,  and  sometimes  the  exclu- 
sive right  to  the  use  of  the  waters  of  a  certain  stream,  to  the 
full  extent  of  such  appropriation. ^  This  principle,  as  has 
been  seen,  is  a  comparatively  new  one,  and  is  entirely  contrary 
to  the  common  law  theories,  where  priority  of  appropriation 
of  w^ater  of  a  stream  by  a  riparian  proprietor  confers  no 
exclusive  right  to  the  use  of  it  as  against  any  one  or  all  the 


1  Atchison  vs.  Peterson,  20  Wall. 
507;  r  Mont.  561;  Erode r  vs. 
Natoma  Water  Co.,  loi  U.  S.  274; 
Basey  vs.  Gallagher,  20  Wall.  670; 
I  Mont.  4.55;  Bntte  Canal  Co.  vs. 
Vaughn,  11  Cal.  143;  Ortman  vs. 
Dickson,  13  Cal.  38;  McDonald  vs. 
Bear  River  M.  Co.,  15  Cal.  145;  13, 
Cal.  220;  Himes  vs.  Johnson,  61 
Cal.  259;  Hoffman  vs.  Stone,  7  Cal. 
49;  Tartar  vs.  Spring  C.  M.  &  M. 
Co.,  5  Cal.  395;  Irwin  vs.  Phillips, 
5  Cal.  140;  Conger  vs.  Weaver,  6 
Cal.  548;  Hill  vs.  King,  8  Cal.  336; 
Bear  River  Co.  vs.  New  York  M. 
Co.,  8  Cal.  27;  McKinney  vs.  Smith, 
21  Cal.  374;  Union  Water  Co.  vs. 
Carey,  25  Cal.  504;  Simms  vs. 
Smith,  7  Cal.  148;  Gale  vs.  Tou- 
lumne  W.  Co.,  14  Cal.  25;  Maeris 
vs.  Bicknell,  10  Cal.  217;  Davis  vs. 
Gale,  32  Cal.  26;  Osgood  vs.  El 
Dorado  W.  M.  Co.,  56  Cal.  571, 
Brown  vs.  Mullin,65  Cal.  89;  Jun- 
kans  vs.  Bergin,67  Cal.  267;  Ware 
vs.  Walker,  70  Cal.  591;  Hill  vs. 
Newman,  5  Cal.  445;  Leigh  Co.  vs. 
Independent  Co.,  8  Cal.  223;  Sulli- 
van vs.  Beardsley,  55  Cal.  608; 
Thorp  vs.  Woolinaii,  i  .Mont.  168; 
Stafford  vs.    I[oriiI>ucklc,  3   .Mont. 


485;  Wheeler  vs.  Northern  Colo. 
Ir.  Co.,  10  Colo.  582;  Schilling  vs. 
Rominger,  4  Colo.  100;  Golden 
Canal  Co.  vs.  Bright,  8  Colo.  144; 
Coffin  vs.  Left  Hand  Ditch  Co., 
6  Colo.  443;  Hammond  vs.  Rose, 
II  Colo.  524;  Fort  Morgan  Land 
Co.  vs.  South  Platte  Ditch  Co., 
(Colo.)  30  Pac.  Rep.  1032;  Combs 
vs.  Agricultural  Ditch  Co.,  17 
Colo.  142;  28  Pac.  Rep.  966;  Far- 
mers' High  Line  Canal  Co.  vs. 
Southworth,  13  Colo,  iii;  21  Pac. 
Rep.  1028;  Lobdell  vs.  Simpson, 
2  Nev.  274;  Barnes  vs.  Sabron,  10 
Nev.  217;  Ophir  S.  M.  Co.  vs.  Car- 
penter, 4  Nev.  534;  Straight  vs. 
Brown,  16  Nev.  317;  James  vs. 
Goodenough,  7  Nev.  324;  Jones  vs. 
Adams,  19  Nev.  78;  Dalton  vs. 
Bowker,  8  Nev.  190;  Barkley  vs. 
Tieleke,  2  Mont.  59;  Keeney  vs. 
Carillo,  2  N.  M.  480;  Clough  vs. 
Wing,  (Ariz.)  17  Pac.  Rep.  453; 
Crane  vs.  Winsor,  2  Utah,  248; 
Monroe  vs.  Ivie,  2  Utah,  535;  Lehi 
Ir.  Co.  vs.  Moyle,  4  Utah,  327;  9 
Pac.  Rep.  867;  Hayden  vs.  Long, 
H  Oreg.  244;  Kaler  vs.  Campbell, 
F3  Oreg.  596;  Hillman  vs.  Hard- 
wick,  (Idaho)  28  Pac.  Rep.  438. 


268 


RIGHTS    OF    APPROPRIATORS. 


[§173 


other  riparian  proprietors,  unless  the  latter's  rights  are  im- 
paired by  grant  or  license,  or  by  the  prior  appropriation  con- 
tinued adversely  for  the  period  of  time  required  for  the  acqui  - 
sition  of  a  right  by  prescription.^  The  common  law  doctrine 
of  riparian  rights  does  not  prevail  in  the  majority  of  the 
States  and  Territories  of  the  great  arid  region  which  lies  west 
of  the  loo  meridian.  Upon  the  public  lands  in  that  section 
of  this  country  property  in  a  stream  of  water  may  be  acquired 
by  mere  appropriation  of  the  same  for  irrigation,  mining,  the 
operation  of  mills,  or  other  useful  purposes,  and  the  first 
appropriator  is,  to  the  extent  of  his  appropriation,  the  owner 
as  against  all  the  world.-  This  is  true,  even  as  against  the 
Government  itself  when  Congress  has  ratified  and  confirmed 
the  acts  of  the  appropriator  as  it  did  by  the  Act  of  July,  1866, 
and  also  the  amendator}^  Act  of  1870.^  All  prior  claimants 
are  entitled  to  the  water  of  the  stream  until  it  is  all  exhausted, 
provided  the  priority  is  based  upon  both  legal  appropriation  and 


iSee  Ante  Chapter  III,  Section 
80.  See  also  Palmer  vs.  Mulligan, 
3  Caines,  307;  2  Am.  Dec.  270; 
Piatt  vs.  Johnson,  15  Johns.  212; 
8  Am.  Dec.  233;  Martin  vs.  Biglow, 
2  Aikens,  184;  16  Am.  Dec.  696; 
Hay  vs.  Sterritt,  2  Watts.  327;  27 
Am.  Dec.  313;  Stout  vs.  McAdams, 

2  Scam.  67;  33  Am.  Dec.  441;  Davis 
vs.  Fuller,  12  Vt.  178;  36  Am. 
Dec.  334;  Evans  vs.  Merriweather, 

3  Scam.  492;  28  Am.  Dec.  107. 
Hartzall  vs.  Sill;  12  Pa.  St.  24S; 
Bliss  vs.  Kennedy,  43  111.  67;  Rudd 
vs.  Williams,  43  111.  385;  Oilman 
vs.  Tilton,  5  N.  H.  231;  Cowles  vs. 
Kidder,  24  N.  H.  378;  Stillman  vs. 
W.  R.,  etc.,  Co.,  3  Wood  &  M.  550; 
Parker  vs.  Hotchkiss,  25  Conn. 
321;  Keeney  vs.  Uniou  Mfg.  Co., 
39  Conn.  576;  Tyler  vs.  Wilkinson, 

4  Mason,  397;  Pugli  vs.  Wheeler, 
2  Dev.  &  B.  55;  Blanchard  vs- 
Ba.cir,  8  Green,  i,  504;  23  Am.  Dec. 


504;  W^adsworth  vs.  Tillotson,  15 
Conn.  368;  39  Am.  Dec.  391. 

2l_,obdell  vs.  Simpson,  2  Nev- 
274;  Ophir  S.  M.  Co.  vs.  Car- 
penter, 4  Nev.  534;  Barnes  vs. 
Sabron,  10  Nev.  217;  Strait  vs. 
Brown,  16  Nev.  317;  40  Am.  Rep. 
497;  Hill  vs.  Newman,  5  Cal.  445; 
Kelly  vs.  Natoma  Water  Co.,  6 
Cal.  107;  Hoffman  vs.  Stone,  7  Cal. 
46;  Hill  vs.  King,  8  Cal.  336;  Bear 
River,  etc.,  Co.  vs.  N.  Y.  Mining 
Co.,  8  Cal.  327;  McDonald  vs.  Bear 
River  Co.,  13  Cal.  220;  Kidd  vs. 
Laird,  15  Cal.  161;  Ortnian  vs. 
Dixon,  13  Cal.  33;  Phoenix  W.  Co. 
vs.  Fletcher,  23  Cal.  481;  Wixon 
vs.  Bear  River  Co.,  24  Cal.  367; 
Hill  vs.  Smith,  27  Cal.  4S0;  Crane 
vs.  Winsor,  2  Utah  24S;  Schilling 
vs.  Rominger,  4  Colo.  100. 

3U.  S.  Rev.  Stat.,  Sees.  2339, 
2340;  Broder  vs.  Natoma  Water 
Co.,  loi  U.  S.  247;  Jennison  vs. 
Kirk,  98  r.  S.  453. 


§  173].  RIGHTS    OF    APPROPRIATORS.  209 

use.  Hence  it  follows  that  the  first  appropriator  is  entitled, 
by  virtue  of  his  prior  appropriation,  to  use  and  enjoy  the 
water  to  the  full  extent  of  his  original  appropriation,  even 
when  this  includes  all  the  water  of  the  stream.^  And  where 
his  original  appropriation  included  all  of  the  water  in  a  stream, 
at  a  point  where  a  ditch  starts,  he  ma}'  increase  the  amount 
diverged  b}^  enlarging  his  ditch  at  pleasure,  and  others  cannot 
complain.-  The  prior  appropriator  is  equally  entitled  to  have 
his  right  unimpaired  by  subsequent  appropriators  above  as 
well  as  below^  him;^  and  all  such  subsequent  parties  can  only 
appropriate  the  water  subject  to  the  right  of  the  first,  whose 
right  to  have  the  water  flow  into  his  ditch  for  the  application 
to  the  use  for  which  he  appropriated  it,  is  co-extensive  with 
the  ditch  itself."*  The  first  appropriator  can  sell  his  right  to 
use  the  water,  and  his  grantee  will  take  the  portion  originally 
enjoyed  by  himself,  and  all  subsequent  appropriators  must 
take  the  water  subject  to  the  rights  of  such  grantee,  whose 
source  of  title  is  traced  back  to  that  of  the  original  appropri- 
ator.^ However,  a  prior  appropriator's  right  to  take  the 
water  of  a  stream  is  protected  only  to  the  extent  and  mode  of 
appropriation,  and  the  amount  of  w^ater  actually  applied  to 
some  beneficial  use  or  purpose,  should  the  rights  of  others 
intervene  between  the  time  of  his  first  diversion  and  his 
attempt  at  enlargement.^ 

iGouldon  Waters,   Section  229;  2james  vs.  Williams,  31  Cal.  211 ; 

Brown    vs.    Mullin,    65    Cal.    89;  Lehi  Ir.  Co.  vs.  Moyle,  4  Utah  327; 

Edgar  vs.  Stevenson,  70  Cal.  2S6.  Charnock   vs.    Rose,   70  Cal.   189; 

See  Post  Chapter  VIII,   Sections  Edgar  vs.  Stevenson,  70  Cal.  286. 

225,  237.  -^   Hill  vs.  King,  8  Cal.  336.     vSee 

Prior   appropriation    of   all    the  also  authorities  cited  above, 

waters  of  a  stream,  applied  to  irri-  1  Lower     King    R.    D.    Co.    v.s. 

gating  purposes,  gives  the  better  Lower   King   R.    F.    Co.,    60   Cal. 

right  to  the  tributaries  and  all  the  408.     Ibid. 

direct  and    immediate  sources  of  5  ]iasey  vs.    Gallagher,    87  U.  S. 

supply  of  the   stream;  and  when  670. 

the  right   once  vests,  it  must  be  t'Lobdell   vs.    Simpson,    2    Nev. 

protected.     Malad  Val.  Jr.  Co.  vs.  274;  Butte  Canal  &  Irrigation  Co. 

Campbell,  (Idaho)  18  Pac.  Rep.  52.  vs.  Vaughn,   11    Cal.   143;  Procter 

See    also   Strickler   vs.    Colorado  vs.  Jennings,  6  Nev.  83;  Ortnian 

Springs  Company,  16  Colo.  61;  26  vs.   Dixon,   13  Cal.  34;  Barnes  vs. 

Pac.  Rep.  313.  vSabron,    10   Nev.    217;    Strait   vs. 


270  RIGHTS    OF    APPROPRIATORS.  [§  174 

§  174r.  Same. — Biisey  vs.  Oallagher. — This  very  important 
question  was  thoroughly  discussed  by  Mr.  Justice  Field,  in 
rendering  the  opinion  of  the  Supreme  Court  of  the  United 
States  in  the  case  of  Basey  vs.  Gallagher.^  This  was  an 
action  brought  by  the  plaintiffs  Gallagher  and  others,  apply- 
ing for  an  injunction  to  restrain  and  perpetually  enjoin  the 
defendant  from  the  use  of  the  waters  of  a  certain  stream, 
known  as  the  Avalanche,  flowing  in  the  Missouri  Valley, 
Montana.  Both  parties  claimed  the  water,  merelj-  by  the 
appropriation  of  the  same  and  for  the  purpose  of  irrigation; 
the  plaintiffs  claiming  by  their  own  appropriation  and 
their  rights  by  purchase  of  a  certain  portion  of  their  claim 
from  their  predecessors  in  interest.  The  Court  said:  "The 
question  on  the  merits  in  this  case  is  whether  a  right  to  run- 
ning waters  on  the  public  lands  of  the  United  States,  for 
purposes  of  irrigation,  can  be  acquired  by  prior  appropriation, 
as  against  parties  not  having  the  title  of  the  Government. 
Neither  party  has  any  title  from  the  United  States;  no  ques- 
tion as  to  the  rights  of  riparian  proprietors  can,  therefore, 
arise.  It  will  be  time  enough  to  consider  those  rights  when 
either  of  the  parties  has  obtained  the  patent  of  the  Govern- 
ment. At  present  both  parties  stand  upon  the  same  footing; 
neither  can  allege  that  the  other  is  a  trespasser  against  the 
Government  without  at  the  same  time  invalidating  his  own 
claim. 

"  In  the  late  case  of  Atchison  vs.  Peterson,  20  Wall.  507,  we 
had  occasion  to  consider  the  respective  rights  of  miners  to 
running  water  upon  the  mineral  lands  of  the  public  domain ; 
and  we  there  held  that  by  the  custom  which  had  obtained 
among  miners  in  the  Pacific  States  and  Territories,  the  party 
who  first  subjected  the  water  to  use,  or  took  the  necessary 
steps  for  that  purpose,  was  regarded,  except  as  against  the 

Brown,    16    Nev.    317;    Cliiatovich  Barker,    42    Cal.    233;    Brown    vs. 

vs.  Davis,  17  Nev.  133;  28  Pac.  Rep.  Mullin,  65  Cal.  89;  American   Co. 

966;  Thomas  vs.  Guiraud,  6  Colo.  vs.  Bradford,  27  Cal.  360;  Junkin 

530;  Combs  vs.   Agric.  Ditch  Co.,  vs.   Bergin,  67  Cal.   267;  Low   vs. 

17  Colo.  142;  McKinne)'  vs.  Smith,  Schaffer  (Ore.),  33  Pac.  678. 

21  Cal.  374;  Nevada  W.  P.  Co.  vs.  l  20  Wall.  670. 
Powell,   34   Cal.    109;  Higgins   vs. 


§174].  RIGHTS    OF    APPKOPRIATORS.  271 

Government,  as  the  source  of  title  in  all  controversies  respect- 
ing it;  that  the  doctrines  of  the  common  law  declarator^'  of 
the  rights  of  riparian  proprietors  were  inapplicable,  or  appli- 
cable only  in  a  limited  extent  to  the  necessities  of  the  miners 
and  were  inadequate  to  their  protection;  that  the  equality  of 
right  recognized  by  that  law  among  all  the  proprietors  upon  the 
same  stream  would  have  been  incompatible  with  any  extended 
diversion  of  the  water  by  one  proprietor,  and  its  conveyance 
for  mining  purposes  to  points  from  which  it  could  not  be 
restored  to  the  stream;  that  the  Government,  by  its  silent 
acquiescence,  had  assented  to  and  encouraged  the  occupation 
of  the  public  lands  for  mining,  and  that  he  who  first  connected 
his  labor  with  propert}^  thus  situated  and  open  to  general 
exploration,  did  in  natural  justice  acquire  a  better  right  to  its 
use  and  enjoyment  than  others  who  had  not  given  such  labor; 
that  the  miners  on  the  public  lands  throughout  the  Pacific 
States  and  Territories,  b}'  their  customs,  usages  and  regula- 
tions, had  recognized  the  inherent  justice  of  this  principle, 
and  the  principle  itself  was  at  an  early  period  recognized  by 
legislation  and  enforced  by  the  Courts  in  those  States  and 
Territories,  and  was  finally  approved  by  the  legislation  of 
Congress  in  1866.  The  views  there  expressed  and  rulings 
made  are  equally  applicable  to  the  use  of  ivater  on  the  public  lands 
for  the  purposes  of  irrigation.  No  distinction  is  made  in  those 
States  and  Territories  by  the  custom  of  miners  or  settlers  or 
by  the  Courts,  in  the  rights  of  the  first  appropriators  from  the 
use  made  of  the  water,  if  the  use  be  a  beneficial  one. 

"  In  the  case  of  Tarter  vs.  Spring  Creek  Water  and  Mining 
Company,  5  Cal.  397,  decided  in  1855,  the  Supreme  Court  of 
California  said:  '  The  current  of  decisions  of  this  Court  go  to 
establish  that  the  policy  of  this  State  as  derived  from  her 
legislation  is  to  permit  settlers  in  all  capacities  to  occupy  the 
public  lands  and  by  such  occupation  to  acquire  the  right  of 
undisturbed  enjoyment  against  all  the  world  but  the  true 
owner.  In  evidence  of  this,  Acts  have  been  passed  to  protect 
the  possession  of  agricultural  lands  acquired  by  mere  occu- 
pancy; to  license  miners;  to  provide  for  the  recovery  of  min- 
ing claims;  recognizing  canals  and  ditches  which  were  known 
to  divert  the  water  of  streams  from  their  natural  channels  for 


272  RIGHTS    OF    APPROPRIATORS.  [§174 

mining  purposes,  and  others  of  like  character.  This  policy 
has  been  extended  equally  to  all  pursuits,  and  no  partialit}^ 
for  one  over  another  has  been  evinced,  except  in  the  single 
case  where  the  rights  of  the  agriculturist  are  made  to  3deld 
to  those  of  the  miner  where  gold  is  discovered  in  his  land. 
The  policy  of  the  exception  is  obvious.  Without  it  the 
entire  gold  region  might  have  been  enclosed  in  large  tracts 
under  the  pretense  of  agriculture  and  grazing,  and  eventually 
what  would  have  sufiiced  as  a  rich  bounty  to  many  thousands 
would  be  reduced  to  the  proprietorship  of  a  few.  Aside  from 
this  the  legislation  and  decisions  have  been  uniform  in  award- 
ing the  right  of  peaceable  enjoj'ment  to  the  first  occupant 
of  the  land  or  anything  incident  to  the  land.'  Per  Heyden- 
feldt,  J.,  sCal.  397- 

' '  'Ever  since  that  decision  it  has  been  held  generally  through- 
out the  Pacific  States  and  Territories,  that  the  right  to  water 
by  prior  appropriation  for  auy  beneficial p2i,rpose  is  entitled  to 
protection.  Water  is  diverted  to  propel  machinery  in  flour- 
mills  and  saw-mills,  and  to  irrigate  land  for  cultivation,  as 
well  as  to  enable  miners  to  work  their  mining  claims;  in  all 
such  cases  the  right  of  the  first  appropriator,  exercised  within 
reasonable  limits,  is  respected  and  enforced.  *  *  *  * 
Several  decisions  of  the  Supreme  Court  of  Montana  have  been 
cited  to  us  recognizing  the  right  by  prior  appropriation  to 
water  for  purposes  of  mining  on  the  public  lands  of  the  United 
States,  and  there  is  no  solid  reason  for  upholding  the  right 
when  the  water  is  thus  used,  which  does  not  apply  with  the 
same  force  when  the  water  is  sought  on  those  lands  for  any 
other  equally  beneficial  purpose.  In  Thorp  vs.  Freed,  i  Mont. 
652,  665,  the  subject  was  very  ably  discussed  by  two  of  the 
Justices  of  that  Court,  who  differed  in  opinion  upon  the  ques- 
tion in  that  case,  where  both  parties  had  acquired  the  title  of 
the  Government.  This  disagreement  would  seem  to  have 
arisen  in  the  application  of  the  doctrine  to  the  case  where 
title  had  passed  from  the  Government,  and  not  in  its  applica- 
tion to  a  case  where  neither  party  had  acquired  that  title.  In 
the  course  of  his  opinion,  Mr.  Justice  Knowles  stated  that 
ever  since  the  settlement  of  the  Territory  it  had  been  the 
custom  of  those  who  had  settled  themselves  upon    the  public 


§  174,  175J.  RIGHTS    OF    APPROPRIATORS.  273 

domain  and  devoted  an}^  part  thereof  to  the  purposes  of  agri- 
culture, to  dig  ditches  and  turn  out  the  waters  of  some  stream 
to  irrigate  the  same;  that  this  right  had  been  generally  recog- 
nized by  the  people  of  the  Territory,  and  had  been  universally 
conceded  as  a  necessity  of  agricultural  pursuits.  '  So  uni- 
versal,' said  the  Justice,  'has  been  this  usage  that  I  do  not 
suppose  there  has  been  a  parcel  of  land  to  the  extent  of  one 
acre  cultivated  within  the  bounds  of  this  Territory  that  has 
not  been  irrigated  from  some  running  stream.' 

"We  are  satisfied  that  the  right  claimed  by  the  plaintiffs 
is  one,  which  under  the  customs,  laws  and  decisions  of  the 
Courts  of  the  Territory  and  the  Act  of  Congress  should  be 
recognized  and  protected. 

"We  therefore  affirm  the  decree  of  the  Supreme  Court 
of  the  Territory." 

§  175.  Rights  of  Subsequent  Appropriators— In  (jleueral. 

— The  rights  of  the  prior  appropriator  being  fixed  by  the 
extent  of  his  appropriation,  others  may  locate  upon  the 
stream,  either  above  or  below,  and  take  all  the  water  that  is 
left  flowing  in  the  natural  channel,  provided  no  interference 
with  or  injury  of  the  rights  of  the  prior  appropriator  is 
thereby  caused.  These  latter  parties  take  the  water  subject 
to  the  rights  of  the  first  appropriators,  and  are  prior  appro- 
priators  themselves  as  regards  those  still  subsequent  to  them, 
in  the  order  that  they  make  their  respective  appropriations. 
Or  in  other  words,  among  the  successive  appropriators,  each 
is  in  the  position  of  a  prior  one  towards  all  who  are  subsequent 
to  himself.^  There  may  be  a  large  number  of  successive  ap- 
propriators, and  in  fact  there  is  no  limit  to  the  operation  of 

1  Stein  Canal  Co.  vs.  Kern  Island,  can  Co.  vs.  Bradford,  27  Cal.  476; 

etc.,  Co.,   53  Cal.  563;  Broder  vs.  McKinney  vs.  Smith,  21  Cal.  374; 

Natoma  Water  Co.,  50  Cal.  621;  10 1  Ortmau   vs.    Dixon,    13   Cal.    143; 

U.    S.  274;  Smith  vs.    O'llara,    43  Kelly    vs.    Natoma   Water   Co.,  6 

Cal.  371;  Brown  vs.  Mullin,  65  Cal.  Cal.    105;  Lobdell  vs.  Simpson,  2 

89;  Higgins  vs.  Barker,  42  Cal.  233;  Ncv.  274;  Procter  vs.  Jennings,  6 

Junkans  vs.  Bergin,   67  Cal.   267;  Nev.   83;  Barnes   vs.    Sabron,     10 

Nevada  Water  Co.  vs.  Powell,  34  Nev.  217;  I^arimer  County  R.  Co. 

Cal.  109;  Davis  vs.  Gale,  32  Cal.  26;  vs.  People,  8  Colo.  614;  9  Pac.  Re]). 

Hill  vs.  Smith,  27  Cal.  476;  Ameri-  794. 


274  RIGHTS  OF  appropeiators.  [§1^75 

the  doctrine,  except  such  phj^sical  limits  as  arise  from  the 
size  of  the  stream  itself  and  the  amount  of  water  taken  by 
each  claimant.  Each  subsequent  appropriator  is  entitled  to 
have  the  water  flow  in  the  same  manner  as  when  he  first 
made  his  appropriation,  and  ma}^  insist  that  the  prior  appro- 
priators  shall  confine  themselves  to  what  was  actually  appro- 
priated or  necessar}'  for  the  purpose  for  which  they  intended 
to  use  the  water. ^  In  all  controversies  between  prior  and 
subsequent  appropriators  of  water,  the  question  is,  has  the 
use  and  enjoyment  of  the  water,  for  purposes  for  which  the 
first  appropriator  claims  it,  been  impaired  by  acts  of  the 
subsequent  claimant  ?  ^  Bearing  upon  this  point  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Atchison  vs.  Peter- 
son,-'^ holds:  That  what  diminution  of  quantity  or  deterior- 
ation in  quality,  will  constitute  an  invasion  of  the  rights  of 
the  first  appropriator,  will  depend  upon  the  special  circum- 
stances of  each  case,  considered  with  reference  to  the  uses  to 
which  the  water  is  appropriated.  A  slight  deterioration  in 
qualit}'  might  render  the  water  unfit  for  drinking  or  domes- 
tic purposes,  whilst  it  would  not  sensibly  impair  its  use  for 
mining  or  irrigation.  In  all  controversies  between  him  and 
parties  subsequently  claiming  the  water  the  question  for 
determination  is  necessaril}'  whether  his  use  and  enjoyment 
of  the  water  to  the  extent  of  the  original  appropriation  has 

1  Ibid.     Rominger  vs.  Squire,  g  ditches  since  construction,  and  no 

Colo.  327;  Barnes   vs.  Sabron,    10  question  of  the  right  of  enlarge- 

Nev.    217,   where  the  Court  held,  nieut  being  involved,  he  must  be 

that    where    the    prior    appropri-  restricted   to   the   capacity  of  his 

ator  of  a  stream  has  constructed  ditches    at   their   smallest    point, 

ditches  in   order    to   irrigate   his  White  vs.  Todd's  Valley  Co.,  8  Cal. 

land,  if  the  capacity  of  his  ditches  443;  Opliir  S.  M.  Co.  vs.  Carpenter, 

is    greater    than   is    necessary   to  6  Nev.  393;  Caruthers  vs.  Pember- 

irrigate  his  farming  land,  he  must  ton,   i   Mont,  in;    Dougherty  vs. 

be     restricted     to    the     quantity  Haggin,   56  Cal.   523;    Wixson  vs. 

needed  for  the  purposes  of  irriga-  Devine,  80    Cal.    385;    Byrne    vs. 

tion,   for  watering  his  stock  and  Crafts,  73  Cal.  641;   Alder  G.   M. 

for  domestic  purposes;  but  if  the  Co.  vs.  Hayes,  6  Mont.  31. 

capacity  is  not  more  than  is  suffi-  2  Hill   vs.    Smith,    27    Cal.    476; 

cient    for    those   purposes,    then,  Union    W.   Co.  vs.  Crary,  25   Cal. 

under  the  facts  of    this  case,  no  504. 

change  having  been  made  in  the  3  20  Wall.  507. 


§175,170].  RIGHTS    OF    APl'ROPRIATORS.  275 

been  impaired  b}'  the  acts  of  the  defendant  (the  subsequent 
appropriator).  So,  bearing  in  mind  if  the  subsequent  appro- 
priators  do  in  no  way  impair  the  right  of  the  first,  the}'  may 
take  in  the  order  of  their  respective  appropriations  an  amount 
of  water  from  anj'-  part  of  the  stream,  sufficient  for  the  pur- 
poses for  which  they  may  claim  it,  even  if  they  take  all  of  the 
remaining  water  in  the  stream.  The  right  of  the  first  appro- 
priator is  not  determined  by  the  comparison  of  the  value  of 
the  water  to  him,  as  compared  to  the  value  to  subsequent 
appropriators.  "  A  comparison  of  the  value  of  conflicting 
rights  would  be  a  novel  mode  of  determining  their  legal 
superiority."^ 

A  subsequent  appropriator  from  a  natural  stream  has  no 
right  to  destroy  the  ditch  of  a  prior  one,  or  to  materially 
diminish  the  quantity  or  deteriorate  the  quality  of  the  water 
to  which  the  latter  is  entitled;  nor  has  the  prior  appropriator 
a  right  to  extend  his  use  of  water  to  the  prejudice  of  the 
subsequent  appropriators. 

§176.  Same— Continued.— A  prior  appropriator  who,  by 
means  of  a  dam  and  ditch,  has  diverted  a  certain  portion  of 
the  water  of  a  stream  sufficient  for  his  purpose  according  to 
the  condition  and  height  of  the  stream  at  the  time  of  his 
appropriation,  is  not  entitled  to  raise  the  height  of  his  dam 
in  order  to  continue  the  diversion  through  his  ditch  when 
physical  and  unanticipated  changes  occur  in  the  stream, 
whether  from  natural  or  artificial  causes,  if  such  alterations 
in  the  dam  interfere  with  subsequent  appropriators,  provided 
such  subsequent  appropriators  did  not  cause  the  change.- 
When  the  right  has  once  been  vested  in  the  subsequent  ap-pro- 
priators,  the  prior  one  is  no  more  justified  in  extending  his 
own  claims,  or  in  changing  the  means  of  appropriation,  or  in 
interfering  with  the  full  enjoyment  of  the  right  vested  in  the 
subsequent  appropriators,  than  those  later  parties  would  be 
in  encroaching  upon  the  prior  rights  of  the  first.     Where  the 

1  Weaver  vs.  Kureka  Lake  Co.  15  Ramsey  vs.  Chandler,  3  Cal.  93; 
Cal.  271;  1-abian  vs.  Collins,  2  Sims  vs.  vSmitli,  7  Cal.  150; 
Mont.  510.  O'Keefe  vs.   Cnnninj^ham,  9  Cal. 

2  Hill    vs.    Smith,    27    Cal.    4^2;  s-Sr ;  Jones  vs.  Jackson,  9  Cal.  24.4. 


276  RIGHTS    OF    APPROPRIATORS.  [§  176 

facts  appear  in  evidence  that  a  party  first  appropriated  a  por- 
tion of  the  water  of  a  certain  stream  at  a  given  point,  and 
diverted  and  enjo^^ed  the  water  bj^  means  of  a  ditch  and  dam 
of  a  certain  height,  from  these  facts  alone  no  legal  presump- 
tion arises  that  a  right  had  at  that  time  vested  to  take  the 
water  out  by  moving  his  dam  to  a  point  higher  up  the  stream 
where  the  back  water  would  injure  the  rights  of  a  subsequent 
appropriator,  or  by  means  of  building  a  higher  dam  which 
would  affect  the  water  at  a  point  higher  up  the  stream  in  the 
same  manner.  On  the  contrary,  the  legal  presumption  from 
these  facts  alone  would  rather  be  that  the  right  was  no  more 
extensive  than  his  present  enjoyment,  if  on  extending  his 
claim,  it  interfered  with  the  vested  rights  of  others.  The 
limitation  of  the  first  appropriator's  right  to  its  actual  enjoy- 
ment at  the  time  being  assumed,  the  subsequent  appropriators 
are  authorized  to  take  the  waters  from  the  stream  above,  and 
use  the  same  for  irrigating  their  lands,  or  for  any  other  useful 
purpose,  so  far  as  they  can  do  so  without  injury  to  the  first 
appropriator's  prior  rights;  and  after  the  rights  of  the  subse- 
quent parties  become  vested  the  first  appropriator  cannot 
rightfully  construct  a  dam  at  a  point  further  up  the  stream 
than  where  his  first  dam  was  located  if  he  thereby  flood  the 
latter's  lands  or  mining  claims,  which  were  not  affected  by 
the  full  enjoyment  of  the  water  rights  of  the  first,  as  they 
existed  at  the  time  of  the  location  of  the  claims  of  the  later 
comers;  nor  can  the  same  results  be  lawfnll}'  accomplished  by 
erecting  a  dam  of  much  greater  height  than  the  old  one  at 
the  point  where  it  was  before  located.  The  latter  mode  of 
encroachment  is  as  clearly  illegal  and  wrongful  as  the  former. 
If  the  first  appropriator  did  not  in  fact,  before  the  appropria- 
tion of  the  latter's  claims,  acquire  the  right  to  erect  his  dam 
to  the  height  to  which  it  was  formerly  carried,  he  could  not 
afterwards  acquire  the  right  as  against  the  latter,  without 
their  consent.  The  fact  that  subsequent  changes  occur  in 
the  bed  of  the  stream,  and  thereby  render  it  impossible  to 
longer  divert  the  water  at  a  point  chosen  without  raising  a 
dam,  can  make  no  difference.  The  question  is,  "  What  was 
the  extent  of  the  first  appropriator's  right  to  affect  the  stream 
above,  by  the  addition  to  his  dam,  at  the  time  when  the  lat- 


§  176,  177].  RIGHTS    OF    APPROPRIATORS. 


977 


ter's  appropriation  was  made?  "  Whatever  was  left  unappro- 
priated at  the  time  was  open  to  be  appropriated  by  subsequent 
parties,  and  if  they,  by  such  subsequent  appropriation, 
acquired  the  right  to  use  a  certain  amount  of  water  of  the 
stream  to  irrigate  their  lands  or  to  work  their  mining  claims 
in  their  condition  at  that  time  in  reference  to  the  stream,  the 
first  appropriator,  in  spite  of  his  priority,  is  not  authorized, 
by  erecting  a  higher  dam,  to  interfere  with  those  rights.  He 
may  have  legal  remedies  against  the  parties  who  filled  up  the 
stream  and  destroyed  the  use  of  the  water  right  he  had 
acquired,  but  the  remedy  is  not  b}'  building  his  dam  higher 
and  thereby  destroying  the  rights  of  other  parties  who  had 
located  upon  the  stream  above,  subject  only  to  the  right  of 
the  claim  of  the  first  appropriator,  whatever  it  was,  as  it 
existed  at  the  time  of  such  location,  and  which  parties  were 
entirely  innocent  of  the  iujur}^  to  the  first.  If  this  was  the 
law  the  exercise  of  such  a  right  might  lead  to  the  flooding  of 
a  large  part  of  the  country  above,  to  the  irreparable  injury  of 
all  having  lands  thereon.^ 

§  177.  Siil)se(iueut  Periodical  Appropriaiioiis. — It  makes 
no  difference  in  the  application  of  the  doctrine  of  subsequent 
appropriations  from  what  soiirce  the  surplus  or  residue  of  the 
water  may  arise.  It  may  be  constant,  resulting  from  a  prior 
appropriation  of  a  portion  only  of  the  water,  or  it  may  be 
intermittent,  resulting  from  a  prior  appropriation  of  all  the 
water  only  a  part  of  the  time.  There  is  no  difi'erence  in  prin- 
ciple between  appropriations  measured  by  time  and  those 
measured  by  volume.  Hence  one  person  can  appropriate  the 
water  in  such  a  manner  that  he  only  takes  and  uses  it  on  cer- 
tain days  of  the  week  or  month,  or  even  certain  hours  of  each 
day,  and  subsequent  appropriators  may  acquire  a  vested  right 
to  the  same  amount  of  water  flowing  in  the  stream  on  the 
other  days  or  hours  not  embraced  in  the  claim  of  the  first. 
As  where  a  person  only  diverts  and  uses  the  waters  on  Mon- 
days, Wednesdays  and  Fridays,  a  subsequent  appropriator 
may  acquire  a  perfect  right  to  use  the  same  quantity  of  water 

1  Il>i(l.     Nc-vadii  Water  Co.  vs.  Powc-ll,  .^  |  Cal.  109. 


278  RIGHTS    OF    APrROPRIATORS.  [^  177,  178 

on  Sunda3^s,  Tuesdays, -Tliursdaj's  and  Saturdays.  And  again 
the  days  may  be  likewise  divided,  as  where  the  first  appropria- 
tor  only  uses  the  water  in  the  day  time  or  certain  hours  of  the 
day,  other  parties  may  acquire  a  vested  right  to  use  the  water  in 
the  night  time,  or  in  the  remaining  hours  of  the  daj-  time  when 
it  is  not  being  used  by  the  first.  Hence,  in  general,  it  follows 
from  the  above  that  if  a  certain  portion  of  the  water  is  appro- 
priated only  for  certain  days  or  a  certain  time  of  the  day  by 
the  first  appropriator,  others  following  may  not  only  appro- 
priate the  surplus  in  whole  or  in  part,  but  ma}'  also  use  the 
quantity  of  the  water  appropriated  b}'  the  first  at  such  times 
as  it  is  not  used  or  needed  by  him,  and  when  so  appropriated 
by  the  second  parties,  their  right  thereto  is  as  perfect  and  en- 
titled to  the  same  protection  as  that  of  the  first  appropriator 
to  the  portion  claimed  by  him.^ 

§  178.  Same. — Autlioritu's  Discussed. — Mr.  Chief  Justice 
Hawley,  in  an  exceedingly  well  considered  opinion,  in  the 
case  of  Barnes  vs.  Sabron,'-^  sums  up  this  principle  as  follows: 
"  We  think  the  rule  is  well  settled  upon  reason  and  authority 
that  if  the  first  appropriator  only  appropriates  a  part  of  the 
water  of  a  stream  for  a  certain  period  of  time  any  other  person 
or  persons  maj-  not  onlj^  appropriate  a  part  for  the  whole  of  the 
residue  and  acquire  right  thereto  as  perfect  as  the  first  appro- 
priator, but  may  also  acquire  a  right  to  the  quantity  of  water 
used  b}-  the  first  appropriator  at  such  times  as  is  not  needed  or 
used  by  him.  In  other  words,  if  plaintiff"only  appropriated  the 
water  during  certain  days  in  a  week,  or  during  a  certain  num- 
ber of  daj^s  in  a  month,  then  the  defendants  would  be  entitled 
to  its  use  in  some  other  days  of  the  week,  or  the  other  days  in 
the  month.  The  Supreme  Court  of  California,  in  Smith  vs. 
O'Hara,^  have  announced  what  appears  to  us  to  be  the  correct 
doctrine.  'It  is  usualh^  the  case,'  says  the  Court,  'that  the 
amount  of  water  to  which  several  persons  claiming  its  use  are 

1  Barnes  vs.  Sabron,  lo  Nev.  217;  Edgar  vs.  vStephenson,  70  Cal.  286; 

Smith   vs.    O'Hara,    43   Cal.    371;  11  Pac.  Rep.  204. 
McKinney  vs.  Smith,  21  Cal.  374;  2  10  Nev.  217,  245. 

Ortman    vs.    Dixon;    13   Cal.    34;  3 43  Cal.  376. 


§  178,  179].  IIIGIITS    OF    Al'^ROPKIAT()K^;.  279 

entitled  is  measured  by  inches,  according  to  miners'  measure- 
ment, or  b}-  the  capacity  of  the  ditches  through  which  it  is 
conducted  from  the  stream,  but  there  is  no  reason  why  the 
amount  ma}-  not  be  measured  in  some  other  mode.  They  hold 
the  amount  appropriated  b)^  them  respectively  as  they  would 
do  had  the  paramount  proprietor  granted  to  each  the  amount 
by  him  appropriated.  The  right  to  use  waters,  or  a  certain 
portion  of  them,  might  be  granted  to  one  person  for  certain 
months,  days,  or  parts  of  days,  and  to  other  persons  for  speci- 
fied times.  An  agriculturist  might  appropriate  the  waters  of 
a  stream  for  irrigation  during  the  drj'  season,  and  a  miner 
might  appropriate  them  for  his  purposes  during  the  remainder 
of  the  3^ear,  and  so  maj^  several  persons  appropriate  the  wa- 
ters for  use  during  any  different  periods.  There  is  no  differ- 
ence in  principle  between  appropriations  of  water  measured  by 
time  and  those  measured b}^  volume.'  " 

Also  in  a  verj-  late  case,  decided  by  the  Supreme  Court  of 
California,  of  Hesperia  I^and  &  Water  Co.  vs.  Rogers,^ 
Thornton,  J.,  in  rendering  the  opinion  of  the  Court,  said: 
"  It  is  urged  that  the  use  by  the  defendant  was  not  contin- 
uous for  the  reason  that  the  defendant  only  ran  the  water  in 
his  ditch  every  year  during  the  cropping  season  and  when  he 
needed  it.  *  *  *  He  uses  it  every  day,  or  once  in  every 
week,  or  twice  a  month,  as  his  needs  require.  He  is  not  re- 
quired to  go  over  it  when  he  does  not  need  it;  to  make  his  use 
of  the  way  continuous  the  claimant  is  required  to  make  a 
reasonable  use  of  the  way  as  his  needs  require.  So  it  is  of 
the  ditch  if,  whenever  the  claimant  needs  it  from  time  to 
time  he  makes  use  of  it,  this  is  a  continuous  use.  An  omis- 
sion to  use  when  not  needed  does  not  disprove  a  continuity  of 
use  shown  b}^  using  it  when  needed.  Neither  such  inter- 
mission nor  omission  breaks  the  continuity."  And  hence 
the  Court  held  that  the  defendant  had  acquired  a  right  by 
prescription. 

§  171).  Approprijition  of  Surplus  or  Ri'siduc  of  Wnler.— 

Another  method  b\-  which  a  suljsequcnt  appropriat(n-  may  se- 
cure a  perfect  right  in  the  waters  of  streams  is  by  the  appro- 

IS3  Cal.  II. 


280  RIGHTS    OF    APPROPRIATORS.  [§  179 

priations  of  the  surplus  or  residue  after  the  first  appropriator 
has  taken  out  the  amount  required  for  his  purposes.  That  is 
to  say,  the  amount  that  the  first  appropriator  is  entitled  to  use 
being  fixed  by  the  extent  of  his  appropriation,^  and  as  he  can 
not  enlarge  his  original  appropriation,  or  make  any  change  to 
the  injury  of  subsequent  appropriators  when  he  has  once 
taken  out  water  sufiicient  for  the  purpose  for  which  he  made 
the  appropriation,  his  right  is  exhausted,  and  others  may  take 
the  balance  or  residue.  As  for  instance,  if  the  prior  appro- 
priation is  for  running  a  mill  it  does  not  include  all  the  water 
of  the  stream  at  the  point  where  the  diversion  is  made  when 
there  is  more  than  sufficient  for  that  purpose,  but  only  so 
much  as  is  actually  needed  for  the  purpose,  and  subsequent 
parties  may  take  the  balance  to  irrigate  their  lands,  work  their 
mining  claims,  or  for  any  other  useful  or  beneficial  purpose; 
and  the  subsequent  parties  obtain  a  vested  right  to  its  use, 
and  may  insist  that  the  water  continue  to  flow  in  the  stream 
as  it  flowed  when  they  made  their  respective  appropriations, 
if  it  is  prevented  in  so  doing  by  the  prior  appropriator.^  Upon 
this  point,  in  the  opinion  of  Ortman  vs.  Dixon, ^  decided  by 
the  Supreme  Court  of  California,  Baldwin,  Judge,  said:  "  We 
presume  that  it  is  not  to  be  doubted  that  the  defendants,  hav- 
ing first  appropriated  the  water  for  their  mill  purposes,  are 
entitled  to  it  to  the  extent  appropriated  and  for  the  purposes 
to  the  exclusion  of  any  subsequent  appropriation  for  the  same 
or  any  other  use.  We  hold  the  absolute  property  in  such 
cases  to  pass  by  appropriation  as  it  would  pass  by  grant.  But 
another   and  different  question    arises,   and  that  is  to    what 

iLobdell   vs.    Simpson,    2    Nev.  so  much  of  the  water  as  is  neces- 

274;  Proctor  vs.  Jennings,  6  Nev.  sary   for   that  particular   purpose 

83;  Byrne  vs.  Crafts,  73  Cal.  641;  The  surplus  may  be  the  subject  of 

Butte   Canal   and    Ditch    Co.    vs.  a   new  appropriation,  which   will 

Vaughn,    11    Cal.    143;    See    Ante  give  to  the  second  appropriator  a 

Section  173.  paramount  use  to  all  the  waters  of 

2  Ortman  vs.  Dixon,   13  Cal.  33.  the  stream,   not  required  for  the 

In   McKinney  vs.  Smith,   21  Cal.  specific  purpose  of  the  first  appro- 

374,  the  Court  held:  that  the  tak-  priation.     See  also  Davis  vs.  Gale, 

ing  up  of  the  water  of  a  certain  32  Cal.  26;  N.  C.  &  S.  C.  vs.  Kidd, 

stream  for  a  special  limited  pur-  37  Cal.  313. 
pose  is  an  appropriation  of   only  3  13  Cal.  34,  38. 


§179,180].  RIGHTS    OF    Al'l'KOl'KIATORS. 


281 


extent  does  this  power  or  right  go  ?  The  measure  of  the  right 
as  to  extent  follows  the  nature  of  the  appropriation  or  the  uses 
for  which  it  is  taken.  The  intent  to  take  and  appropriate 
and  the  outward  act  go  together;  if  we  concede  that  a  man  has 
right  by  mere  priority  to  take  as  much  water  from  a  running 
stream  as  he  chooses,  to  be  applied  to  such  purposes  as  he 
pleases,  the  question  still  arises,  what  did  he  choose  to  take  ? 
And  this  depends  upon  the  general  and  particular  uses  he 
makes  of  it.  If,  for  instance,  a  man  takes  up  water  to  irrigate 
his  meadow  at  certain  seasons,  the  act  of  appropriation,  the 
means  used  to  carry  out  the  purpose,  and  the  use  made  of  the 
water,  would  qualify  his  right  of  appropriation  to  a  taking  for 
a  specific  purpose  and  limit  the  quantity  to  that  purpose,  or  to 
so  much  as  is  necessary  for  it.  So,  if  A  erects  a  mill  on  a  run- 
ning stream,  this  shows  an  appropriation  of  the  water  for  a 
mill;  but,  if  he  suffers  a  portion  of  the  water,  or  the  body  of 
it,  after  running  the  mill,  to  go  down  its  accustomed  course 
we  do  not  see  why  persons  below  may  not  as  well  appropriate 
this  residuum  as  he  could  appropriate  the  first  use.  The  truth 
is  he  only  appropriates  so  much  as  he  needs  for  the  given 


purpose."^ 


§  180.  Same.— Authorities  Discussed.— Upon  this  impor- 
tant question  of  the  rights  of  subsequent  appropriators  of 
water,  the  Supreme  Court  of  Nevada  in  the  case  of  Proctor 
vs.  Jennings, 2  holds:  That  a  person  appropriating  a  water  right 
in  a  stream  already  partly  appropriated  acquires  a  right  to 
the  surplus  or  residuum  he  appropriates;  and  those  who  ac- 
quired prior  rights,  whether  above  or  below  him  on  the  stream, 
can  in  no  way  change  or  exchange  or  extend  their  use  of  the 
water  to  his  prejudice,  but  are  limited  to  the  right  enjoyed  by 
them  when  he  secured  his.  Mr.  Chief  Justice  Lewis,  in  ren- 
dering the  opinion  of  the  Court,  very  comprehensively  says: 
"Priority  of  appropriation,  where  no  other  title  exists,  un- 

1  In  a  recent  case  decided  in  the  are  satisfied,  he,  as  a  riparian  pro- 
Supreme  Court  of  Oregon  of  Low  prietor,  is  not  entitled  to  have  the 
vs.  Schaffer,   33  Pac.  Rep.  678,  it  excess  (low   in  the  chaniu-1  of  the 
was  held  that  after  the  needs  of  a  stream, 
prior  approi)riator  of  the  stream  -2  6  Nev.  83. 


282  RIGHTS    OF    APPROrRIATORS.  [§180,181 

doubtedl}-  gives  the  better  right.  And  the  rights  of  all  sub- 
sequent appropriators  are  subject  to  those  of  him  who  is  first  in 
time.  But  others,  coming  on  the  stream  subsequently,  ma}' 
appropriate  and  acquire  a  right  to  the  surplus  and  residuum, 
so  that  the  rights  of  each  successive  person  appropriating 
water  from  the  stream  are  subordinate  to  all  those  previously 
acquired,  and  the  rights  of  each  are  to  be  determined  by  the 
condition  of  things  at  the  time  he  makes  his  appropriation. 
So  far  is  this  rule  carried,  that  those  who  were  prior  to  him 
can  in  no  way  change  or  extend  their  use  to  his  prejudice,  but 
are  limited  to  the  rights  enjo5'ed  by  them  when  he  secured 
his.  Nor  has  any  one  the  right  to  do  an^^thing  which  will  in 
the  natural  or  probable  course  of  things  curtail  or  interfere 
with  the  prior  acquired  rights  of  those  either  above  or  below 
him  on  the  same  stream.  The  subsequent  appropriator  onh' 
acquires  what  have  not  been  secured  by  those  prior  to  him  in 
time.  But  what  he  does  thus  secure  is  as  absolute  and  per- 
fect and  free  from  au}^  right  of  others  to  interfere  with  it  as 
the  rights  of  those  before  him  are  secure  from  interference  b_v 
him."  ^  Also  where  prior  appropriators  have  secured  a  right 
to  the  use  of  all  the  waters  of  a  stream,  it  means  as  the  stream 
ordinarily  flows,  and  subsequent  appropriators  may  take  all 
the  surplus  in  times  of  extraordinary  high  water  or  freshets, 
without  infringing  upon  any  of  the  rights  of  the  prior  appro- 
priator.^ 

§  181.  Successive  Api>roj)riatioiis. — So  long  as  the  subse- 
quent appropriators  do  not  injure  or  impair  the  rights  of  the 
prior,  they  may  use  as  much  of  the  water  of  the  stream  as 
they  choose,  and  may  take  it  out  at  any  point  on  the  stream, 
having  due  regard  to  the  amount  embraced  in  any  prior  appro- 
priation. Thus,  if  a  subsequent  appropriator  desires  to  use 
the  water  of  a  certain  stream  for  mechanical  purposes,  located 

ISee   also   Opliir  S.   M.  Co.    vs.  Ortman   vs.    Dixon,     13    Cal.    39; 

Carpenter,  4  Nev.  534;  Lobdell  vs.  McKinney  vs.  Smith;  21  Cal.  374; 

Simpson,    2   Nev.    276;    American  N.  C.  &  S.  C.  Co.  vs.  Kidd,  37  Cal. 

Co.  vs.  Bradford,  27  Cal.  361.  313;  Edgar  vs.  Stevenson,  70  Cal. 

2 Brown  vs.  Smith,   10  Cal.  510;  286. 
Smith   vs.    O'Hara,   43    Cal.    375; 


§  181].  KKillTS    OF    APl'ROPRIATOHS.  283 

above  the  point  of  diversion  by  one  liavinj^  the  primary  right 
to  the  water  for  the  purpose  of  irrigation,  he  may  use  it  to 
drive  his  mill  or  generate  electricit}-,  etc.,  provided  he  return 
all  the  water  after  its  use,  undeteriorated  in  quality,  to  its 
natural  channel  in  the  stream  before  it  reaches  the  prior 
appropriator's  point  of  diversion;  and  further  provided  that 
in  his  use  of  the  water  the  rights  of  the  prior  appropriator 
are  in  no  manner  impaired.  But  upon  the  other  hand  the 
diversion  of  a  water  course,  or  a  part  of  it,  by  either  a  subse- 
quent appropriator  or  a  riparian  proprietor,  for  manufacturing 
purposes,  without  returning  it  to  the  channel,  is  an  unreason- 
able exercise  of  the  right  to  use  the  waters  of  the  stream.  ^ 
This  is  so,  for  as  has  been  stated  before,  the  question  is,  has 
the  use  and  enjoyment  of  the  water  for  tlie  purpose  for  7vhich 
the  first  appropriator  claims  it,  been  impaired  by  the  acts  of  the 
subsequent  appropriatorsf-  If  there  has  been  no  injur}^  done 
to  those  who  have  a  prior  right  to  the  waters,  the  result  of 
his  act  would  at  most  be  dammim  absque  ijijuria.  What 
diminution  in  quantity  or  what  deterioration  in  quality  will 
injuriously  affect  the  use  of  the  water  bj^  the  prior  appropria- 
tor, is  a  question  of  fact  for  the  jury  to  consider  in  connection 
with  all  the  circumstances  of  the  case.^  However,  where  a 
ditch  has  been  excavated  from  the  bed  of  a  stream  l^y  a  prior 
appropriator,  and  water  is  being  diverted  through  the  same 
for  irrigation  or  any  useful  purpose,  a  subsequent  appropria- 
tor has  no  right  to  work  a  mining  claim,  or  to  use  for  any  other 
purpose  the  water  located  above  the  head  of  the  first  appro- 
priator's ditch,  in  such  manner  as  to  mingle  mud  and  sediment 
with  the  water,  or  injure  in  any  manner  its  value  to  the 
owner  of  the  ditch  for  the  purpose  for  which  he  first  claims 
the  use  of  the  water.'* 


1  Weiss  vs.  Oregon  I.  &  S.  Co.,  •' Phoenix  Water  Co.  vs.  I'lctcher, 
1.3  Oreg.  496;  II  Pac.  Rep.  255.  23  Cal.  483;  Hill  vs.  Smith,  27  Cal. 

2  Atchison  vs.  Peterson,  20  Wall.  476;  Hill  vs.  Kinj^,  8  Cal.  336. 
507;  Union  Water  Co.   vs.    Crary,  -i  Hill   vs.   Smith,  27  Cal.  476;  H 
25  Cal.  504;  Hill  vs.  Smith,  27  Cal.  Saw'y.    286;    Woodruff   vs.    North 
476.     See   also   Ante    Section    175  lUoomiield  C).  M.  Co.,8  Saw'y.  286; 
and  cases  cited.  9  Saw'y.    111;    iS  I-'ch.  Rep.  801. 


284  RIGHTS    OF    APPROPRIATORS.  [§  182 

§  182.  Subsequent  Appropriation  Before  tlie  Works  of  the 
First  Appropriator  Are  Completed. — While  the  prior  claim- 
ant's dam,  canal  or  other  works  are  in  the  process  of  construc- 
tion or  so  much  out  of  repair  that  they  are  not  available  for 
the  purpose  designed ,  and  until  they  are  in  a  condition  to  ap- 
propriate the  water,  the  appropriation  and  use  of  the  water  by 
others  is  not  an  injurj^  to  him,  and  such  use  affords  him  no 
relief  either  legal  or  equitable;^  provided,  the  prior  claimant 
has  the  use  of  so  much  water  as  is  necessary'  to  preserve  his 
flume  and  other  works  from  injury  while  in  the  process  of 
construction.^ 

Upon  this  subject  Mr.  Chief  Justice  Sawyer,  of  the  Supreme 
Court  of  California,  in  the  case  of  Nevada  Count}'  and  Sacra- 
mento Canal  Co.  vs.  Kidd,^  said:  "  A  party  may  to-day  take 
up  a  site  for  a  dam  and  canal,  and  claim  the  waters  of  a  river 
to  be  diverted  at  that  point,  and  immediately  commence  work 
with  a  view  of  appropriating  the  water  to  his  use  for  mining 
purposes,  and  3'et,  although  laboring  with  all  diligence,  be 
unable  actually  to  use  the  water  for  any  purpose  for  years  to 
come.  Until  he  can  use  it  another  party  may  divert  the  whole 
water  and  use  it;  provided,  he  can  do  so  without  injury  to  the 
plaintiff's  dam  or  canal,  or  the  progress  of  his  work,  and 
there  would  be  no  injury  to  the  plaintiff's  water  right,  and  no 
right  of  action  to  establish  the  water  right  or  recover  the 
water.  There  is,  in  fact  as  yet,  no  present  water  right  to  be 
affected.  The  party  has  merely  acquired  the  possession  and 
site  for  his  dam  and  canals,  and  a  right  by  diligently  pursuing 
his  object  to  acquire  a  future  right  to  the  possession  of  the  water, 
which,  when  acquired,  shall,  for  the  purpose  of  priority  and  re- 
dressing any  injuries  that  ma}'  thereafter  accrue,  date  by  rela- 
tion from  the  first  act  in  selecting  the  location  and  making  the 
claim.  But  while  pursuing  his  work  and  constructing  his  dam 
and  canal,  with  a  view  to  the  future  appropriation  of  the  water 
and  before  any  present  water  right  capable  of  injury  bydiver- 

1  Bear  River  Co.  vs.  Boles,  24  Cal.  114;  Union  Water  Co.  vs.  Crary,  25 
359;  Brown  vs.  Smith,  10  Cal.  508;       Cal.  504. 

N.  C.  &  S.  C.  Co.  vs.  Kidd,  37  Cal.  2  Weaver  vs.  Conger,  10  Cal.  233; 

282;    Harvey   vs.    Chilton,  11  Cal.       6  Cal.  548. 

•\37  Cal.  282,  309. 


§  182,  183].  RIGHTS   OF   APPROPRIATORS.  285 

sioii  or  use  of  others  has  been  acquired,  his  dam  and  canal 
may  be  injured  by  trespassers  or  taken  from  him,  and  he  be 
obstructed  in  his  proceedings  to  acquire  a  right  to  the 
waters  themselves,  and  he  may  have  a  cause  of  action  on  that 
ground.  But  this  is  necessarily  a  different  thing  and  a  differ- 
ent cause  of  action  from  an  injury  to  his  right  to  the  water 
itself  by  diverting  it  from  him.  The  possession  of  the  unfin- 
ished dam  and  canal,  or  of  the  site,  is  not  the  possession  and 
enjoyment  of  the  water,  but  merely  the  possession  of  the 
means  of  acquiring,  by  the  exercise  of  due  diligence,  a  right 
to  the  water  in  future.  This  is  che  doctrine  of  this  Court,  as 
established  by  a  long  series  of  decisions.  The  right  to  the 
water  or  water  right,  as  it  is  commonly  called,  is  only  ac- 
quired by  an  actual  appropriation  and  use  of  the  water.  The 
property  is  not  in  the  corpus  of  the  water,  but  is  only  in  the 
use." 

§  183.  Distribution  of  Increase  in  Yoliune  of  Stream.— 
Another  important  question  arises  as  to  the  relations  of  those 
who  claim  the  water  by  appropriation  when  the  volume  of  the 
stream  from  whence  they  take  is  increased  by  natural  or  arti- 
ficial means  after  the  respective  appropriations  are  made. 
And  the  authorities  upon  the  subject  hold  that  if  several  par- 
ties have  acquired  rights  to  the  use  of  the  water  in  a  stream 
and  the  volume  of  that  stream  is  increased  at  a  place  higher 
up  than  the  heads  of  all  their  ditches  from  some  natural  cause 
it  belongs  to  the  several  appropriators  respectively,  according 
to  their  priority  of  right — the  one  having  made  the  prior  ap- 
propriation is  first  entitled  to  the  increased  flow  to  the  extent 
of  his  appropriation  and  use  of  the  additional  water. ^  So 
also,  if  the  water  from  an  artificial  source  was  turned  into  the 
natural  channel  of  the  stream  without  any  intention  to  recap- 
ture it  on  the  part  of  parties  who  formerly  owned  it.  it  also 
h^conxes  piiblici  jtcr is,  to  all  intents  a  part  of  the  natural  wa- 
ters of  the  stream  into  which  it  emptied,  and  the  rights  of  the 
several  appropriators  remain  relatively  the  same  as  before  and 
are  not  differently  affected  than  they  would  have  been  had 
the  increase  of  water  been  due  to  some  natural  cause. ^ 

1  Davis  vs.  Gale,  32  Cal.  26;  Drew  2  ibid.  vSce  Post  Chapter  VIII. 
vs.  Hicks,  35  Pac.  Kep.  563.  ■Section  259. 


286  RIGHTS    OF    APPROPRIATORS.  [§184 

§  184.  Doctrine  of  Relatioii  :is  Between  Appropriators. — 

As  between  parties  who  claim  the  waters  of  a  stream  by  merely 
its  appropriation  the  doctrine  of  relation  is  often  a  very  impor- 
tant subject  in  determining  the  priority  of  the  claimants.  The 
general  doctrine  upon  this  subject  has  been  touched  upon  in 
a  former  chapter/  but  we  will  now  discuss  the  principles  of 
the  same  that  apply  to  the  subject  at  hand.  As  was  shown  in 
the  sections  cited,  an  appropriation  does  not  become  com- 
pleted until  the  water  is  finally  diverted  and  applied  to  some 
beneficial  use  or  purpose,  whether  it  was  the  one  for  which  it 
was  appropriated  or  not.  If  the  first  person  attempting  to  ap- 
propriate water  from  a  stream  properly  gives  a  notice  and  fol- 
lovv^s  it  up  within  a  reasonable  time  by  the  work  of  construct- 
ing the  dam,  ditch,  reservoir,  or  other  necessary  instrumentali- 
ties for  the  diversion  and  appropriation  of  the  water  to.  the 
purpose  intended;  and  the  work  upon  these  means  of  diver- 
sion is  prosecuted  with  all  due  and  reasonable  diligence  until 
they  are  finally  completed,  and  the  water  actually  diverted 
and  applied,  then  the  person  will  acquire  an  exclusive  right  to 
the  use  of  the  water  by  the  perfected  appropriation,  and  his 
right  will  relate  back  as  against  all  subsequent  appropriators  to 
the  time  of  giving  the  notice.^  The  law  allows  a  reasonable 
time  for  finishing  the  work  and  completing  the  appropriation.^ 
If,  however,  on  the  other  hand,  there  was  unreasonable  delay 
between  the  time  of  the  giving  of  notice  and  the  commence- 
ment of  the  work,  and  the  work  was  not  prosecuted  to  com- 
pletion with  due  and  reasonable  diligence,  or  in  other  words, 
if  there  was  unreasonable  delay  in  its  prosecution  and  the 
rights  of  a  subsequent  appropriator  have  in  the  meantime  in- 
terv^ened,  based  upon    a  strict  compliance  of  the  law  and  all 

1  Ante  Chapter  VI.  Sections  i68,  Mont.  535;  Ophir   Mining  Co.  vs. 

[69,  and  authorities  cited.  Carpenter,   4   Nev.  534;    Atchison 

SKelly  vs.  Natoma  Water  Co.,  6  vs.  Peterson,   i   Mont.   561;    Irwin 

Cal.  105;  Osgood  vs.  El  Dorado  W.  vs.  Strat,  18  Nev.  436;   N.  C.  &  S. 

Co.,  56  Cal.  571.  C.  Co.  vs.  Kidd,  37    Cal.  282;    Sie- 

^Maeris  vs.  Bicknell,  7  Cal.  261;  ber  vs.  Frink,  7  Colo.  148;  Whee- 

Kimball  vs.  Gearhart,   12  Cal.  27;  ler   vs.    North   Colo.    Ir.    Co.,    10 

King  vs.    Edwards,   i    Mont.  235;  Colo.    582;    Columbia   M.    Co.  vs. 

Osgood  vs.  W.    &  M.  Co.,  56  Cal.  Holter,  i  Mont.  296. 
511;   Woolman    vs.    Garringer,     i 


§  184,  185].       RIGHTS  OF  aituopriators.  287 

due  diligence,  then  the  right  of  the  first  to  use  the  water  dates 
only  from  the  time  when  his  appropriation  was  perfected,  and 
he  becomes  an  appropriator  subsequent  and  subject  to  the 
rights  of  the  part}-  coming  last — the  position  of  the  two  being 
reversed.^ 

II.    Approprisitiou  as  Aij;ainst  a  Congressional   (iraiit   of 
the  (government. 

§  185.  Appropriation  as  Against  a  Congressional  Grant.— 
In  General. — A  land  grant  as  has  been  seen,-  is  the  techni- 
cal term  used  in  the  United  States  for  a  grant  by  Congress  of 
a  portion  of  the  public  lands  of  the  United  States.  The 
grantee  is,  of  course,  the  party  receiving  the  land,  and  it  may 
be  a  person,  corporation,  State  or  Territory.  As  between 
persons  who  claim  the  waters  of  streams  or  lakes  by  the  ap- 
propriation of  said  waters  while  they  were  upon  the  public 
domain  of  the  United  States,  and  the  subsequent  grantee  of 
the  Government  of  a  tract  of  land  through  or  adjoining  which 
the  waters  ran,  the  appropriator,  being  first  in  time,  has  the 
exclusive  right  to  use  the  waters  to  the  extent  of  his  appropri- 
ation, and  the  grantee  takes  the  land  subject  to  such  appropri- 

1  Ibid.     Opiiir  S.  M.  Co.  vs.  Car-  gating  canal  from  a  point  on  snch 

penter,  4    Nev.    534;     Irvine    vs.  river  near  the   initial  point  of  the 

Strait,   18   Nev.    436;   Keenej^   vs.  proposed  canal  of  the  grantor,  and 

Carillo,    2   N.    M.   480;    Meggerle  running    some    distance    parallel 

vs.    Ashe,    33   Cal.    74;  Smith   vs.  with  the  latter,  but  finally  diverg- 

Athern,  34   Cal.    504;    Daniels  vs.  ing  several   miles   therefrom,  the 

Landsdale,  43  Cal.  41;    Landsdale  grantee  acquired  no  rights  by  such 

vs.  Daniels,  100  U.  S.  118.  conveyance,  and   its  rights   as  an 

As  to  what  is  due   and  reason-  appropriator  of   the  waters  of  the 

able    diligence   see    Chapter   VI.  river    do  not   relate   back  to   the 

Sections  160,   161.  time   when   the   grantor   filed  its 

See  Part  Second  for   Statutory  statement  and  plat.     Colo.   Land 

Ivnactments    upon    the  subject  of  &  Water  Co.  vs.  The    Rocky  Ford 

Relation.  Canal,  Reservoir,  Land,  Loan  and 

Relation.     Wliere  a  canal  com-  Trust  Co.  (Colo.  App.)  34  Pac.  Rep. 

pany  at  the  end  of  two  years  sold  580. 

and  conveyed  its  rights  to  another  2  Ante  Chapter  V,  Sections  137- 

company  which  had,  prior  to  such  139. 
conveyance,    constructed   an  irri- 


288  RIGHTS    OF    APPROPRIATOKS.  [§  185 

ations.^  This  principle  is  based  upon  the  general  policy  of 
the  Government  to  protect  all  those  who  by  its  license  or  for- 
bearance have  appropriated  the  waters  of  streams  or  lakes 
upon  the  public  domain.  When  water  first  began  to  be  appro- 
priated from  the  inland  lakes  and  streams  flowing  in  the  arid 
region  by  persons  for  the  purpose  of  mining,  irrigation  and 
other  useful  purposes,  the  Government,  as  the  proprietor  of 
the  lands  over  which  the  streams  flowed,  might  have  then  put 
a  stop  to  all  such  appropriations,  and  thereby  forever  put  an 
end  to  this  troublesome  question.  But  the  country  at  that 
time  was  nothing  but  a  vast  desert,  covered  only  by  sage 
brush  and  grease  wood,  and  inhabited  by  savages  and  wild 
animals.  The  streams  were  comparativel}^  small,  and 
washed  but  a  very  limited  portion  of  the  country,  and  what 
water  did  flow  in  them  flowed  on  uninterruptedly,  and  was 
wasted  in  the  ocean.  I^and  in  this  country,  without  water, 
was  absolutely  worthless.  The  Government  could  not  give 
it  away.  This  is  illustrated  by  the  thousands  of  acres  that 
are  to-day  above  the  reach  of  water.  These  lands  are  to  all 
purposes,  as  far  as  now  known,  except  where  they  contain 
minerals,  absolutely  worthless,  although  the  quality  of  the 
soil  itself  may  be  quite  as  good  as  the  soil  that  is  within  the 
reach  of  water,  and  that  is  now  under  cultivation.  No  one 
will  take  them  as  a  gift,  much  less  settle  upon  them.  It  is 
easy  enough  to  get  the  land,  but  where  is  the  water  to  come 
from  to  make  the  land  productive  and  valuable?  Gold  was 
discovered  in  California,  but  the  claims  could  not  be  worked 
without  water.  So  the  miners  conducted  the  water  at  a  vast 
expenditure  of  money  in  many  cases,  to  the  place  where  they 
were  operating  their  mining  claims,  and  without  owning  a 
'''ingle  inch  of  land  upon  the  bank  of  the  stream  from  which 
they  took  the  water.  It  was  not  too  late  then  to  interfere,  and 
the  government  might  have  denied  this  right  to  the  miners, 
and  treated  it  as  non-existing,  as  well  as  it  could  have  denied 

1  Broder  vs.  Natoma  Water  Co.,  Thorp  vs.  Freed;  i  Mont.  651;  Gold 

loi   U.  S.  273;  50  Cal.  621;  Basey  Hill  Mining  Co.  vs.  Ish,  5  Oregon 

vs.  Gallagher,  20  Wall.  670;  Atchi-  104;  Sparrow  vs.  Strong,  3  Wall, 

son   vs.    Peterson,    20    Wall.    507;  97,  777;  Barnes  vs.  Sabron,  10  Nev, 

Jennison  vs.   Kirk,   98  U.  S.  453;  217. 


§  185,  186].  RIGHTS    OF   APPROPRIATORS.  289 

the  right  to  those  who  appropriated  the  water  for  the  purpose 
of  agriculture  after  the  gold  excitement  had  died  out.  What 
would  have  been  the  result?  The  country  would  have  remained 
in  its  primitive  condition,  except,  perhaps,  small  strips  of  land 
bordering  upon  some  of  its  streams.  The  mines  would  have 
remained  unworked.  And  the  Government,  through  its  sel- 
fishness, would  still  be  the  owner  of  iiearly  all  of  its  original 
public  domain,  intact  and  uninhabited. 

§186.  Same— Coiltiliued, — But  the  policy  of  the  Govern- 
ment has  been  not  so  much  to  hold  the  title  to  the  public 
domain  intact  in  itself  as  it  has  been  to  have  this  western 
country  settled  up.  And  therefore  instead  of  pursuing  the 
selfish  policy  mentioned  above  and  prohibiting  the  appropria- 
tion of  water,  it  has  offered  many  inducements  to  those  who 
in  good  faith  settle  upon  or  improve  any  portion  of  the  public 
lands. ^  And  in  the  first  place  the  Government  remained  pas- 
sive and  permitted  water  to  be  appropriated  from  its  natural 
courses  upon  the  public  domain,  and  by  costly  artificial  works 
to  be  conducted  for  perhaps  miles  over  mountains  and  ravines, 
to  be  used  for  mining  operations,  irrigation  and  other  useful 
purposes.  So  fully  did  the  Government  recognize  these 
rights  of  the  appropriators,  and  tacitly  encourage  them,  that 
it  has  been  held  by  the  Supreme  Court  of  the  United  States 
that  even  wdthout  any  act  of  legislation  by  Congress  the 
appropriators  had  secured  rights  to  the  use  of  the  water  which 
the  Government  had  by  its  conduct  recognized  and  encour- 
aged and  was  bound  to  protect. ^  However,  the  Government 
did  not  rest  there,  but  on  the  contrary,  instead  of  trying 
to  repudiate  these  claims,  Congress  formerly  acknowledged 
the  rights  acquired  in  waters,  and  by  the  Statute  of  July  26th, 
1866,^  made  the  national  ownership  of  the  public  domain  over, 
or  adjoining  which  streams  of  water  flowed,  subject  to  the 

1  Broder  vs.  Natoma   Water  Co.,  2  Broder  vs.   Natoma  Water  Co., 

loi  U.  S.  274;  50  Cal.  621;  Winona,  loi  U.  S.  274. 

etc.,  Ry.  Co.  vs.  Barney,  113  U.  S.  -^  14  Stat,  at  h.    251,  Sec.  9.     See 

618;  »St.  Joseph,    etc.,  Ry.  Co.  vs.  Ante  vSection  113. 
Baldwin,  103  U.  S.  426;   Ikiriiliani 
vs.  Starkey,  41  Kan.  604. 


290  RIGHTS    OF    APPROPRIATORS.  [§  186,  187 

rights  of  appropriators  of  the  water  of  such  streams.     Thus 
wherever  the  water  was  appropriated  the  public  domain  was 
burdened    to    that   extent,  and   the   same   burden  would  on 
general  principles  accompany  the  title  if  the  lands  were  trans- 
ferred to  any  subsequent  or  private  owners;  and  so  whoever 
succeeded  to  the  title  of  the  United  States  through  any  mode 
of  acquisition  or  conveyance  whatsoever,  if  waters  had  prior 
to   that  transfer  of  title  been  appropriated  from   the  stream 
running  through  or  adjoining  such  lands,  the  grantee  would 
acquire  and  take  the  land  subject  to  the  same  servitude  which 
before  existed  in  favor  of  the  prior  appropriator.     And  also 
by  the  Act  of  July  9th,  1870,  which  Act  is  amendatory  to  the 
Act  of  1866,  Congress  still  strengthened  the  position  of  the 
appropriator  of  waters  by  providing  "  that  all  patents  granted, 
or  pre-emptions  or  homesteads  allowed,  shall  be  subject  to 
any  vested  and  accrued  water  rights,"  etc.     And  in  all  Con- 
gressional  grants,  whereby   large   tracts  of  land  have   been 
granted  to  railroad  companies,  there  has  usually  been  a  gen- 
eral clause  reserving  all  vested  rights  of  appropriators  or  set- 
tlers.^    But  whether   a  reservation  clause  of  this   nature  is 
embodied  in  the  grant  itself  or  not,  it  has  become  the  settled 
law  under  the  decisions  of  the  Courts  that  where  this  right  of 
appropriation  has  once  vested    a   subsequent  grantee  of  the 
Government  takes  the  land  subject  to  this  right. ^ 

§  187.  Decisions  on  Subject.— In  that  great  decision  of  the 
Supreme  Court  of  the  United  States,  of  Broder  vs.  Natoma 
Water  and  Mining  Company,'^  the  Court  held,  or  at  least  inti- 
mated b}^  the  course  of  its  reasoning,  that  the  subsequent 
grantee  from  the  Government  would  take  subject  to  the 
rights  of  a  prior  appropriator,  even  in  the  absence  of  the 
declarations  contained  in  the  Acts  of  1866  and  1870.  The 
facts  in  that  case  as  found  in  the  trial  court  were  that  the 
defendant,  long  prior  to  the  passage  of  the  Act  of  1866  upon 

1  See   Act   of    1864,    13   Stat,    at  loi  U.  S.   274;  Barnes  vs.  Sabron, 

L.    356,    Sec.   4.     See   Ante     Sec-  10  Nev.  217;  Osgood  vs.  Edwards, 

tions  137,    138.     See   Act   of  July  etc.,  Co.  56  Cal.  571. 

9th,  1870;  Ante  Section  116.  ^loi  U.  S.  274. 
2  Broder  vs.  Natoma   Water  Co., 


§  187]  RIGHTS    OF    APPROPRIATORS.  291 

lands  which  were  then  public,  constructed  the  ditch  com- 
plaiued  of,  for  the  purpose  of  supplying  water  for  miners  and 
others,  and  continued  to  control  and  hold  possession  of  the 
ditch  from  the  time  of  its  completion  in  1853,  until  the  com- 
mencement of  the  action;  that  the  ditch  cost  $200,000;  also 
this  entr)',  possession  and  ownership  were  taken,  acquired  and 
held  according  to  the  local  customs  and  laws  of  California,  and 
under  the  supposed  license  of  the  United  States.  It  was  also 
found  that  the  plaintiff  had  a  title  to  the  land  through  a  por- 
tion of  which  the  ditch  ran,  and  a  part  of  which  title  was  de- 
rived from  what  is  now  known  as  the  Central  Pacific  Railroad 
Companj^,  that  company  having  been  granted  the  land  by  the 
Pacific  Railroad  Bills  of  1863  and  1864;  the  balance  of  the 
plaintiff's  title  was  by  pre-emption  claims,  the  declaratory 
statements  of  which  were  filed  on  Aug.  6th  and  Sept.  14th, 
1866.  The  plaintiff  asked  to  have  the  canal  declared  a  nuis- 
ance and  abated,  and  for  $12,000  damages.  Mr.  Justice  Miller, 
in  rendering  the  opinion  of  the  Court,  sums  up  the  principles 
stated  above  as  follows:  "  As  to  the  canal  of  the  defendants, 
so  far  as  it  ran  through  the  land  of  the  United  States,  at  the 
date  of  this  Act  it  was  an  unequivocal  grant  of  the  right  of 
way,  if  it  was  no  more.  As  the  plaintiff's  right  commenced 
subsequent  to  this  statute,  as  to  the  lands  patented  to  him  and 
his  brother,  he  took  the  title  subject  to  this  right  of  way  and 
cannot  now  disturb  it. 

In  reference  to  the  lands  of  plaintiff  held  under  convey- 
ance from  the  Pacific  Railroad  Company,  it  might  be  a  ques- 
tion of  some  difficulty  whether  the  right  was  so  far  a  vested 
right  in  that  company  before  the  passage  of  this  Act  of  1866, 
that  the  latter  would  be  ineffectual  as  regards  these  lands. 
But  we  do  not  think  that  defeyidants  are  under  the  necessity  of 
relying  on  that  statute. 

We  are  of  the  opinion  that  it  is  the  established  doctrine  of 
this  Court  that  rights  of  miners  who  had  taken  possession  of 
mines,  and  worked  and  developed  them,  and  the  rights  of 
persons  who  had  constructed  canals  and  ditches  to  be  u.sed  in 
mining  operations  and  for  purposes  of  agricultural  irrigation, 
in  the  region  where  such  artificial  use  of  the  water  was  an 
absolute  necessity,  are  rights  which  the  Government  had,  l)y 


292  RIGHTS    OF    APPROPRIATORS.  [§  187 

its  conduct,  recognized  and  encouraged,  and  was  bound  to 
protect  before  the  passage  of  the  Act  of  1866,  and  that  the 
section  of  the  Act  which  we  have  quoted  was  a  volzmtary 
recognition  of  a  pre-existing  right  of  possession,  constituting 
a  valid  claim  to  its  continued  use,  than  the  establishment 
of  a  new  one.  This  subject  has  so  recently  received  our 
attention,  and  the  grounds  on  which  this  construction  rests 
are  so  well  set  forth  in  the  following  cases  that  thej^  will 
be  relied  on  without  further  argument :  Atchison  vs.  Peterson, 
20  Wall.  507;  Basey  vs.  Gallagher,  20  Wall.  670:  Forbes  vs. 
Gracej^  94  U.  S.  764;  Jennison  vs.  Kirk,  8  Otto.  453-462. 

"We  turn  now  to  the  Act  of  1864,  13  Stat,  at  L.  356,  which 
makes  the  final  grant  to  the  Pacific  Railroad  Companies,  and 
the  acceptance  of  which  by  the  companies  bound  them  to  its 
terms,  and  we  find  in  section  4,  which  enlarges  the  grant  of 
lands  made  by  the  Act  of  1862,  this  clause  of  reservation  from 
the  general  terms  of  the  grant:  'Any  lands  granted  by  this 
Act,  or  the  Act  to  which  this  is  an  amendment,  shall  not 
defeat  or  impair  any  pre-emption,  homestead,  swamp  land  or 
other  claim  nor  include  any  Government  reservations  or  min- 
eral lands,  or  the  improvement  of  an}^  bona  fide  settler  or  any 
lands  returned  or  denominated  as  mineral  lands,  and  the  tim- 
ber necessary  to  support  his  said  improvements  as  a  miner  or 
agriculturist.' 

"  We  have  had  occasion  to  construe  a  very  common  clause  of 
reservation  in  grants  to  other  railroad  companies,  and  in  aid 
of  other  works  of  internal  improvements,  and  in  all  of  them 
we  have  done  so  in  the  light  of  the  general  principle  that 
Congress,  in  the  act  of  making  these  donations,  could  not  be 
supposed  to  exercise  its  liberality  at  the  expense  of  pre-exist- 
ing rights,  which,  though  imperfect,  were  still  meritorious, 
and  had  just  claims  to  legislative  protection.  See  Wolcott  vs. 
Des  Moines  Co.,  5  Wall.  681;  Williams  vs.  Baker,  17  Wall. 
144;  R.  R.  Co.  vs.  U.  S.,  92  U.  S.  733. 

"  In  construing  the  grant  to  the  Pacific  Railroad  Companies 
this  principle  is  eminently  applicable.  The  grant  of  land 
was  vastly  larger  than  any  previous  grant.  The  land  was  sur- 
rounded by  circumstances  much  more  varied  than  in  any 
previous  grant,  and  the  number  and  varied  character  of  the 


§  187,  188]  RIGHTS    OF    APPROPRIATORS.  293 

interests  which  might  be  affected  by  the  vast  extent  of  the 
donation  were  beyond  any  with  which  Congress  had  previously 
dealt. 

"  Hence  we  have  in  the  clause  of  reservation  a  much  more 
liberal  and  extended  protection  of  pre-existing  rights  than  in 
reserv-ation  clauses  which  has  become  a  formula  in  previous 
grants. 

' '  Not  only  are  prior  reser%'ations  made  by  the  Government, 
and  rights  of  pre-emption  excepted,  but  the  improvements  of 
bona  fide  settlers,  land  returned  or  denominated  mineral  lands, 
and  the  timbers  necessary  to  support  the  miners  improvements, 
and  any  other  claims  are  unaffected  by  the  grant.  Of  course 
this  means  any  honest  claim  evidenced  by  improvements  or 
other  acts  of  possession. 

"We  cannot  doubt  that  the  claim  of  the  defendants,  of 
which  they  had  been  in  possession  for  twelve  years  when  the 
Act  was  passed,  on  which  they  had  expended  $200,000,  which 
was  of  great  utility,  nay,  necessity  to  a  large  agricultural  and 
mining  interest,  was  of  the  class  which  this  section  declared 
should  not  be  defeated  by  the  grant  which  Congress  was  then 
making."  ^ 

§  188.  Converse  of  Docti:iiie.  —  The  United  States,  as 
appropriator  of  the  public  lands,  has  the  same  rights  and 
property  in  the  streams  flowing  through  those  lands  that 
would  be  possessed  by  any  other  riparian  proprietor.  In  the 
absence  of  actual  vested  rights  in  waters  or  legislation  annex- 
ing conditions  or  limitations  to  grants  the  grantee  receives 
not  only  the  fee  of  the  soil,  but  also,  as  an  incident  thereto, 
the  benefit  of  all  natural  streams  which  flow  through  them.  ^ 
The  Government,  before  any  legislation  limiting  its  title,  has 
a  perfect  title  to  the  public  land  and  an  absolute  and  unqualified 

1  See  also  Atchison  vs.  Peterson,  Baker,  17  Wall.  144;  Railroad  Co. 

20  Wall.  507;  Jetinison  vs.  Kirk,  98  vs.  United  States,  92  U.  S.  733. 

U.  S.  453;  Basey  vs.  Gallagher,  20  •      2  Union   Mill   Co.    vs.   Ferris,    2 

Wall.  670;  Forbes  vs.  Gracey,   94  Sawyer  176;  Los  Anj,'eles  vs.  Bald- 

U.  S.  762;  Walcott  vs.  Des  Moines  win,  53  Cal.  469;  Pope  vs.  Kiinnan, 

Co.,    5    Wall.    6S1;    Williams    vs.  54  Cal.  3;  Ferrca  vs.  Kiiip",  2S  t^al. 

340. 


294  RIGHTS    OF    APPROPRIATORS.  [§188,189 

right  of  disposal,  it  can  pass  to  its  grantee  the  fee  to  the  land 
without  limitation,  and  not  only  include  the  soil,  but  also  the 
streams  which  flow  over  the  land  as  an  incident  thereto. 
The  grantee  then  becomes  a  riparian  owner  and,  except  in 
States  where  the  common  law  theories  of  riparian  rights  have 
been  abolished,  can  insist  that  the  stream  continue  to  flow  as 
it  was  wont,  without  material  alteration  in  quality  or  quantity. 
Where  there  has  been  no  prior  appropriation  of  waters  or 
other  vested  rights  in  the  same  upon  a  tract  of  land  granted 
to  a  railway  company  the  company,  as  grantee,  takes  the  fee 
to  the  land  without  any  limitations  or  burden  as  regards  the 
water  which  naturally  flows  over  the  same.  In  this  case  the 
company  may  become  the  riparian  owner  of  all  the  lands 
that  border  upon  the  streams  flowing  through  them,  and  all 
subsequent  appropriations  of  the  waters  of  those  streams 
must  be  made  subject  to  its  rights  as  such  riparian  proprietor, 
according  to  the  laws  of  the  State  or  Territory  where  such 
rights  attach.  Thus  in  this  respect  also  we  find  that  the 
principle  of  priority  gives  a  better  right.  If  the  railroad 
company  secures  its  grant  before  any  appropriations  have  been 
made  of  the  waters  that  flow  through  the  land  granted,  then 
all  subsequent  appropriations  must  be  made  subject  to  the 
rights  of  the  company  as  riparian  owners.  But  upon  the 
other  hand,  if  appropriations  had  been  made  of  the  waters 
before  the  land  was  granted  to  the  company  by  Act  of  Con- 
gress, then  in  that  case  the  company  takes  the  land  subject 
to  all  vested  rights  then  existing;  and  all  future  appropriations 
made  after  the  Act  granting  the  land  must  be  made,  first, 
subject  to  the  prior  appropriator's  rights;  and  second,  subject 
to  the  rights  of  the  company  as  the  riparian  proprietors.^ 

§  189.  Tlie  Doctrine  of  llelatiou  as  Applied  to  Cougres- 
sioual  Grants. — We  have  seen  that  an  appropriation  of  water, 
if  followed  up  step  by  step  with  all  due  and  reasonable  dili- 
gence until  the  water  is  diverted  and  actuall}^  applied  to  some 

iBroder  vs.  Natoma  Water  Co.,  R.  Co.  vs.  Barney,   113  U.  S.  618; 
loi  U.  S.  274;  Atchison  vs.  Peter-  St.  Joseph,  etc.,  Ry.  Co.  vs.  Bald- 
son,  20  Wall.  507;  Basey  vs.  Gal.  win,  103  U.  S.  426.. 
lagher,  20  Wall.  670;  Winona,  etc., 


§189J  RIGHTS    OF    APPROPRIATORS.  295 

beneficial  use  or  purpose  relates  back  to  the  first  act  taken  for 
the  appropriation  of  the  same.     Now  the  question  for  deter- 
mination is:     When  does  a  grant  made  to  a  railroad  company 
b)'-  an  Act  of  Congress  take  effect  so  as  to  cut  off  the  right  of 
appropriation  of  subsequent  parties  in   those  States  or  Terri- 
tories where  the  company  can  claim  the  water  by  virtue  of  the 
common  law  of  riparian  rights  ?     The  grants  to  railroad  com- 
panies being  usually  vipraesenii,  import  the  transfer,  subject 
to  the  limitations  of  a  present  interest  in  the  lands  designated. 
So,  if  rights  of  appropriators  of  water,  or  other  rights  of  set- 
tlers, have  vested  prior  to  the  date  of  the  Act  granting  the 
lands  there  is  no  question  but  that  those  rights  will  be  pro- 
tected, notwithstanding  the  grant  of  the  tract,  including  the 
streams  from  which  the  water  was  taken,  to  the  company,  and 
the  company'  in  that  case  takes  the  title  to  the  lands  subject 
to  those  vested  rights,  whatever  they  may  be.^    But  another 
question  arises  in  this  connection.     Usually  a  period  of  time 
elapses  between  the  date  of  the  Act    of  Congress  granting 
the  land  to  the  compan3^  and  the   time  when  the  route  of 
the  road  is  established.      Now,  during  this  period  of  time, 
can  claims  to  water  from  streams  flowing  through  the  tract 
granted   be   acquired   by   private   parties   subsequent   to  the 
Act  ?      The   authorities  hold  upon  this  point   that  they  can 
be  so  acquired  up  to  the  time  when   the  route  to  the  road  is 
"definitely  fixed."     The   inquiry  then  arises,    when  is    the 
route  of  the  road  to  be  considered  as   "  definitely  fixed  "  so 
that  the  grant  attaches  to  the'land  and  cuts  off  all  subsequent 
claimants?     The    route    is    "definitely    fixed,"    within    the 
meaning  of  the  Act  of  Congress  when  the  company  files  with 
the  Secretary  of  the  Interior  a  map  of  its  lines,  as  the  route 
has  thus  ceased  to  be  subject  of  change  at  the  volition  of  the 
company.     And  up  to  the  time  when  the  company  files  with 
the  Secretary  a  map  of  its  route,  thus  identifying  the  same, 
and  the  lands  included  in  the  grant,  claims  to  water  by  ap- 
propriation relating  back  to  the  first  or  preliminary  act  taken 
to  secure  the  same,  are  not  affected  by  the  grant. ^ 

1  Ibid.  vs.  U.  P.  Ry.    Co.,    30   Fed.    Rep. 

2Broder  vs.  Natonia  Wakr  Co.,        660;    Missouri,    etc.,    Ry.    Co.    vs. 

loi  U.  S.  274;  50  Cal.  621;  C.lidden        Noyes,  25  K;iii.  ;,]<>;  5  Am.  &  JCug. 


296  RIGHTS    OF    APPROPRIATORS.  [§  189,  190 

Upon  this  point  Mr.  Justice  Field,  in  rendering  the  opinion 
of  the  Supreme  Court  of  the  United  States  in  the  case  of  Van 
Wyck  vs.  Knevals,!  said  as  follows:  "The  route  must  be 
considered  as  '  definitely  fixed  '  when  it  has  ceased  to  be  the 
subject  of  change  at  the  volition  of  the  company.  Until  the 
map  is  filed  with  the  Secretary  of  the  Interior  the  company  is 
at  liberty  to  adopt  such  a  route  as  it  may  deem  best  after  an 
examination  of  the  ground  has  disclosed  the  feasibility  and  ad- 
vantages of  different  lines.  But  when  a  route  is  adopted  by 
the  company  and  a  map  designating  it  is  filed  with  the  Secre- 
tary of  the  Interior  and  accepted  by  that  officer  the  route  is 
established;  it  is  in  the  language  of  the  Act,  '  definitely  fixed,' 
and  cannot  be  the  subject  of  future  change  so  as  to  affect  the 
grant,  except  upon  legislative  consent.  No  further  action  is 
required  of  the  company  to  fix  the  route.  It  then  becomes  the 
duty  of  the  Secretary  to  withdraw  the  lands  granted  from  mar- 
ket. But  if  he  should  neglect  this  duty  the  neglect  would  not 
impair  the  rights  of  the  company,  however  prejudicial  it  might 
prove  to  others." 

The  Supreme  Court,  in  the  case  of  St.  Paul  M.  &  M- 
Ry.  Co.  vs.  Phelps,^  said:  "Again  it  is  the  settled  law 
that  railroad  grants,  such  as  the  one  under  consideration,  are 
grants  in  praesenti,  and  take  effect  upon  the  sections  of  the  land 
when  the  road  is  definitely  located  by  relation  as  of  the  date  of 
the  grant." 

III.  Controversies  between  Coniiictiug  Onints. 

§  190.  Conflicting  Grants. — As  we  have  seen,  a  railroad 
compan}^  as  grantee  of  the  Government,  in  those  jurisdictions 
which  recognize  the  common  law  rights  in  water,  upon  tak- 
ing the  title  to  the  lands  granted  becomes  the  riparian  pro- 
prietor of  all  such  lands  as  border  upon  streams  flowing  through 
those  lands,  provided  that  their  waters  have  not  been  appro- 
priated prior  to  the  time  that  the  route  of  the  road  was  ' '  defi- 
nitely fixed." 

Ry.  Cases,  440;  Atchison,  etc.,  Ry.       Knevals,  106  U.  S.  360;    10  Am.  & 
Co.  vs.  Pracht,  30  Kan.  66;  12  Am.       Eng.  Ry.   Cas.  664. 
&Eng.  Cases,  261;  Van  Wyck  vs.  l  106  U.  vS.  660. 

2  137  u.  S.  528. 


§190,  191J  RIGHTS    OF    APPROPRIATORS.  297 

Now,  as  to  controversies  between  different  parties  claiming 
two  Congressional  grants  of  lands  to  aid  in  the  building  of 
railroads  or  for  any  other  purpose,  the  title  to  the  lands 
granted  relates,  after  the  road  is  definitely  located  according 
to  law,  to  the  date  of  the  grant;  and  in  cases  where  the  lands 
granted,  as  between  different  roads,  conflict  or  encroach  upon 
each  other  priorit}'  of  the  date  of  the  Act  of  Congress  and 
not  priority  of  the  location  of  the  line  ot  the  road  gives 
priority  of  title  to  the  land;  and  of  course,  as  the  road  only 
takes  the  waters  as  riparian  proprietor,  the  same  principle  of 
relation  also  applies  to  the  rights  in  waters  flowing  over  or 
adjoining  those  lands. ^  When,  however,  the  Acts  of  Congress 
in  such  cases  are  of  the  same  date,  or  when  grants  are  made  to 
different  roads  by  the  same  statute  priorit}-  of  location  gives  no 
priority  of  right  to  the  lands  and  waters  granted;  but  where 
the  limits  of  the  grants  which  are  finally  settled  by  the  roads 
being  definitely  located  conflict  by  crossing  or  lapping  the 
railroad  companies  building  the  roads  under  those  grants  take 
the  lands  and  water  as  an  incident  thereto  within  the  conflict- 
ing limits  of  the  location  in  equal  undivided  moieties,  without 
regard  to  priority  of  location  of  the  line  of  the  road,  or  pri- 
ority of  construction,  provided  that  both  companies  complete 
their  roads  within  the  time  limited  by  law.^ 

IV.  Appropriation  as  against  Conftictini;  Claims  of  Settlers 

on  Lands. 

§  191.  Riparian  Rights  in  Arid  Region. — In  the  arid  region 
as  well  as  in  other  parts  of  the  country  the  common  law 
principles  of  riparian  rights  still  exist  to  a  certain  extent  in 
many  of  the  States  and  Territories.  The  United  States  hav- 
ing an  absolute  and  perfect  title  to  and  the  unqualified  right 
of  property  in  the  public  domain,  and  a  perfect  right  of  dis- 
posal; and  as  running  water  is  naturally  an  incident  to,  or  a 
part   of  the  soil  over  or  adjoining  which    it  flows,  a  patent 

1st.   Paul   &  vS.   C.  Ry.  Co.  vs.  U.  S.  360;  (irinnell  vs.  Ry.  Co.,  103 

Winona  &  S.  P.  Ry.  Co.   112  U.  S.  U.   S.  739;  St.  Paul  and  Pac.  Ry. 

320;  R.  R.  Co.  vs.  Ry.  Co.,  97  U.  S.  Co.  vs.  N.  Pac.  Ry.  Co.,  139  U.  S.  i. 

501;  Van   Wicks  vs.  Knevals,   106  -Ibid. 


298  RIGHTS    OF    APPROPRIATORS]         [§  191,  192 

to  a  certain  tract  of  land  bordering  upon  or  divided  by  a  nat- 
ural stream,  before  any  claim  to  the  waters  of  which  is  made 
by  prior  appropriators,  carries  not  only  the  soil  but  the  stream 
flowing  through  or  adjoining  it.  And  in  those  States  and 
Territories  where  the  common  law  rights  are  still  in  existence 
anj^  subsequent  appropriations  of  the  waters  of  the  streams 
made  by  another  person  in  pursuance  of  local  customs  or  laws 
recognized  by  the  legislation  of  the  State  and  of  Congress, 
must  be  subject  to  the  prior  title  of  the  patentee  and  the 
common  law  riparian  rights  belonging  to  him.'  The  principle, 
as  can  be  readil}^  seen,  is  the  converse  of  the  doctrine  of  prior 
appropriation  as  set  forth  in  the  previous  sections  of  this 
chapter,  where  it  is  shown  that  the  prior  appropriation  of 
water  wholly  upon  the  public  lands  of  the  United  States  is 
good  as  against  all  subsequent  comers.  In  these  cases  the 
prior  appropriation  gf  land  over  or  adjoining  which  a  stream 
flows  carries  with  it  a  paramount  right  to  the  grantee  as 
riparian  owner  of  those  waters.  Thus  priority  in  controver- 
sies between  patentees  of  the  Government  against  those 
claiming  the  water  by  mere  appropriation  is  also  the  basis  of 
the  superior  right. ^ 

§  192.  Goyernmeiit  Patent  in  the  Absence  of  Statute. — 

Prior  to  the  26th  day  of  July,  1866,  there  was  no  legislation 
by  Congress  which  tended  in  anj'  way  to  limit  the  rights  of 
the  patentee  of  the  Government,  or  to  recognize  the  rights 
acquired  by  the  appropriator  of  waters  of  the  streams  upon 
the  public  domain  and  no  authorit}^  for  the  same  except 
the  local  customs  and  laws  of  the  respective  States  and 
Territories  where  the  appropriation  was  sought  to  be  made. 
Therefore  the  laws  governing  all  controversies  between 
those  who  claim  the  waters  of  a  stream  upon  the  public 
domain  by  the  mere  appropriation  of  the  same  for  some  use- 
ful purpose,  and  those  who  claim   the   waters  of  the   same 

1  Union  Mill  &  M. , Co.  vs.  Ferris,  Leigh  Co.    vs.    Independent,  etc, 

2  Sawyer,    176;  Union  Mill  &  M.  Ditch   Co.,   S   Cal.    323;   Sturr   vs. 

Co.  vs.  Dangberg,  2  Sawyer,  450;  Beck;  133  U.  vS.  541. 
Vansickle  vs.  Haines,  7  Nev.  249;  -  Sturr  vs.  Beck,  133  U.  S.  541. 

Crandall   vs.    Woods,   S   Cal.    136; 


§192]  RIGHTS    OF    APPROPRIATORS.  299 

Stream  as  riparian  owners  by  virtue  of  a  patent  from  the 
Government  to  the  lands  adjoining  the  stream,  have  been 
divided  by  the  authorities  into  two  periods — those  laws  in 
force  governing  the  transfer  of  lands  by  the  Government 
prior  to  the  Act  of  Congress  of  July  26th,  1866,  and  those  in 
force  relative  to  the  same  subject  subsequent  to  that  date. 

In  discussing  the  laws  governing  the  first  period  we  will 
say,  in  addition  to  the  above,  that  if  a  person  secures  a  title 
to  Government  land,  adjoining  or  over  which  a  stream  natur- 
ally flows,  in  those  States  and  Territories  which  recognize 
and  protect  the  common  law  riparian  rights,  before  there  has 
been  any  appropriation  of  the  waters  of  the  same  stream, 
there  is  no  question  as  to  his  paramount  right  as  riparian  pro- 
prietor to  the  use  of  the  water  of  the  stream.^  But  there  is 
another  question  for  consideration.  Suppose,  for  instance, 
that  A  as  a  first  appropriator  diverted  the  waters  of  a  certain 
stream  upon  the  public  domain,  and  took  the  first  step  neces- 
sary for  his  appropriation  upon  the  first  day  of  Juh',  1855,  and 
that  he  should  continue  to  divert,  possess  and  use  the  water  of 
the  stream  continuously  for  the  purpose  of  irrigation  until  inter- 
rupted thereafterwards.  *  Now,' there  is  no  question  as  to  the 
paramount  title  of  A  by  virtue  of  his  priority  as  against  all 
subsequent  appropriators  of  tiie  water  of  the  same  stream, 
or  as  to  his  rights  beginning  b}^  relation  upon  the  first  day  of 
July,  1855 — the  date  of  the  first  act  toward  the  accomplish- 
ment of  his  appropriation.  But  again  let  us  suppose  that  B 
having  made  an  entry  as  pre-emptor  upon  a  certain  tract  of 
Government  land  bordering  upon  the  same  stream,  on  Jan- 
uary loth,  i860,  below  the  point  from  which  A  diverts  the 
water  and  B's  right  to  the  land  and  the  incidents  thereto 
become  vested  and  perfect  as  against  all  subsequent  parties 
in  1865 — before  the  first  Act  of  Congress — by  securing  his 
patent  therefor.^  And  suppose  that  A  in  diverting  and  using 
the  water  materially  diminishes  the  volume  of  the  stream,  to 
the  injury  of  the  riparian  rights  of  B.  Now  the  question  in 
the  premises  is,  has  A  a  right  to  the  use  of  the  water  of  the 

1  See    Pari    S  e  c  o  11  d,    Ri])arian  2  At  just,  what  ])oiiit  the  rights  of 

Rights  ill  California,  Nc-va<la  and  a  patentee  vest,  will  ho  discussed 
Oregon.  in  sections  208-220. 


300  RIGHTS    OF    APPROPRIATORS.  [§  192,  193 

stream  b}-  virtue  of  liis  prior  appropriation,  or  can  B  insist, 
as  a  riparian  proprietor,  although  acquiring  a  title  to  his  land 
subsequent  to  the  time  when  A's  right  had  vested,  that  the 
water  continue  to  flow  in  its  natural  channel  by  virtue  of  his 
rights  as  such  subsequent  riparian  proprietor.  The  authori- 
ties are  somewhat  divided  upon  this  subject.  Some  holding 
that  if  the  water  of  the  stream  on  the  public  domain  is  appro- 
priated by  a  person  having  no  title  to  the  land  adjoining  the 
stream,  and  the  land  is  afterward  patented  to  other  persons 
whose  riparian  rights  are  interfered  with  by  the  diversion,  the 
patentee  succeeded  before  any  legislation  b}^  Congress  limit- 
ing the  effect  of  the  patent  to  the  fee  of  the  soil  and  as  an 
incident  thereto  to  all  the  common  law  rights  as  riparian  pro- 
prietor of  all  natural  streams  which  flow  through  or  adjoin 
his  land.^ 

This  ruling  of  course  would  cut  off  all  the  rights  that  A 
may  have  acquired  in  and  to  the  stream,  and  hold  him  simply 
as  a  trespasser;  and  undoubtedly  in  many  cases  this  has  worked 
great  injury  to  those  who  had  actuallj^  appropriated  at  great 
expense  the  waters  of  streams  while  the  same  were  upon  the 
public  domain.  But  this  ruling  for  a  long  time  was,  and 
still  is,  by  some,  deemed  to  be  the  law  upon  the  subject, 
inequitable  as  it  undoubtedly  is,  as  we  shall  endeavor  to  show 
in  our  subsequent  discussion  of  this  exceedingly  important 
subject. 

§  193.  The  Principle  Upon  Which  tlie  Proposition  Was 
Kased. — The  principle  upon  w^hich  the  proposition  above 
set  forth  is  deemed  to  be  based  goes  back  to  the  very  foun- 
dation principles  of  the  Government  title  to  public  lands. 
As  we  have  seen  in  a  former  chapter,  the  Government 
has  a  perfect  right  to  acquire  lands, ^  and  when  lands  have 
been  so  acquired  it  is  the  absolute  and  unqualified  proprietor 
of  all  the  public   domain  to  which  the  Indian  title  has  been 

lUnion  M.  &.  M.  Co.  vs.  Ferris,  126;  Holmes  vs.  Jennison,  14    Pet. 

2   Sawyer,    176;    Vansickle    vs.  540;  Holden  vs.  Joy,   17  Wall.  211; 

Haines,  7  Nev.  249.  i  Kent.  Com.   165,    166;   Story  on 

2See  Chapter   \'.,  Sections   125,  Constitution,  Section  150S. 


§193] 


RIGHTS   OF    APPROPRIATORS. 


301 


extinguished.^  Also  in  Chapter  III.  we  have  discussed  at  con- 
siderable length,  the  proposition  that  under  common  law 
theories  running  water  is  primarily  an  incident  to  the  owner- 
ship of  the  soil  over  which  it  naturally  flows.  In  other  words, 
it  was  deemed  by  the  authorities  referred  to  that  the  owner  of 
the  fee  of  land  had  a  perfect  title  to  and  control  of  the  water 
naturally  flowing  over  it  to  the  same  extent,  and  in  the  same 
sense  as  he  has  to  and  of  the  soil  itself,  if  he  took  the  title  to 
the  land  without  any  statutory  limitations.' 

There  is  no  question  but  that  the  United  States  had  a  per- 
fect title  to  the  public  domain  before  any  steps  were  taken 
limiting  this  title;  it  also  had  as  an  incident  to  the  soil  thereon 
a  perfect  title  to  the  waters  of  streams  and  lakes  upon  that 
public  domain.^ 

The  Government,  as  proprietor  of  the  public  lands  through 
which  streams  flow,  has  primarily  the  same  property  and  right 
in  the  stream  that  any  other  riparian  proprietor  would  have. 
Upon  these  points  there  can  be  no  question;  but  we  also  find 


1  Vansickle  vs.  Haines,  7  Nev. 
249;  Union  M.  &  M.  Co.  vs.  Ferris, 
2  Sawyer,  176;  Irvine  vs.  Marshall, 
20  How.  561. 

2  I  Co.  Litt.  4a;  Cooley's  Black. 
Com.,  Book  I,  Chap.  2,  and  note  4; 
Angell  on  Water  Courses,  Sec.  5, 
note  3,  vSecs.  10,  12,  132;  2  Washl). 
on  R.  P.,  Chapter  i.  Sees.  3,  40, 
Washburn  on  Easements,  270, 
274,  281;  I  Bright's  Digest,  500, 
Sec.  232;  Ante  Chapter  III.;  Elliott 
vs.  Fitchburg  Ry.  Co.,  10  Cush. 
193;  Mason  vs.  Hill,  3  B.  &  Ad. 
305;  5  B.  &  Ad.  i;  Sampson  vs. 
Hoddinott,  i  C.  B.  N.  S.  611; 
Embrey  vs.  Owen,  6  Exch.  553; 
Phear  on  Rights  of  Water,  14  and 
following;  Wright  vs.  Howard,  i 
Sim.  &.Stew.  190;  Davis  vs.  Fuller, 
12  Vermont,  178;  Snow  vs.  Par- 
sons, 2  Williams,  459;  Tillotson  vs. 
Smith,  32  N.  H.  90;  Gerrish  vs. 
Newmarket     Co.,     10     Far.    478; 


Blanchard  vs.  Baker,  S  Maine,  253; 
Ingraham  vs.  Hutchinson,  2  Conn. 
584;  Parker  vs.  Hotchkiss,  25 
Conn.  321;  Wadsworth  vs.  Tillot- 
son, 15  Conn.  366;  King  vs.  Tif- 
fany, 4  Conn.  162;  Tyler  vs.  Wilk- 
inson, 4  Mason,  397;  Webb  vs. 
Portland  M.  Co.,  3  Sum.  189; 
Campbell  vs.  Smith,  3  Hal.  140; 
Pugh  vs.  Wheeler,  2  Dev,  &  Bat. 
50;  Canal  Conns,  vs.  People,  17 
Wend.  570;  5  Wend.  423;  Rogers 
vs.  Jones,  i  Wend.  237;  Ex-parte 
Jennings,  6  Cow.  518;  Gardner  vs. 
Trustees,  2  Johns  Ch.  163;  Corning 
vs.  Troy  Iron  Wks.  34  Barb.  486; 
4  N.  Y.  204;  Arnold  vs.  Foote,  12 
Wend.  330;  Heath  vs.  Williams, 
25  Maine,  209;  3  Kent.  Com.  439, 
and  notes;  Gould  on  Waters.  Sees. 
230  and  240;  Pomeroy  on  Riparian 
Rights,  Sec.  36. 
3  Ibid. 


302 


RIGHTS    OF    APPROPRIATORP.  [§  193,  194 


that  the  Government  has  a  right  to  dispose  of  its  lands  or  any 
of  the  incidents  thereto  to  any  person  or  in  any  manner 
it  may  see  fit.  And  we  shall  endeavor  to  show  that  the  Gov- 
ernment had  already  disposed  of  such  waters  flowing  over  the 
public  domain  as  had  been  actually  appropriated  for  some 
beneficial  use  or  purpose  prior  to  the  first  Act  of  Congress 
upon  the  subject  of  July  26th,  1866. 

§  194.  Same. — Continued. — In  our  previous  discussion  we 
have  seen  that  neither  a  State  nor  Territorial  legislature  can 
in  any  manner  modify  or  affect  the  right  which  the  Govern- 
ment has  to  the  primary  disposal  of  the  public  lands. ^ 


1  See  Ante  Chapter  V.,  Section 
134,  and  authorities  cited. 

Upon  this  very  important  sub- 
ject the  Siipreme  Court  of  the 
United  States,  speaking  through 
Mr.  Justice  Daniel,  in  the  opinion 
of  the  Court  of  Irvine  vs.  Marshall, 
20  How.  558,  said:  "  It  cannot  be 
denied  that  all  the  lands  in  the 
territory  not  appropriated  by  com- 
petent authority  before  they  were 
acquired,  are  in  the  first  instance 
the  exclusive  property  of  the 
United  States,  to  be  disposed  of  to 
such  persons  at  such  times  and  in 
such  modes  and  by  such  titles  as 
the  Government  may  deem  most 
advantageous  to  the  public  fisc, 
or  in  other  respects  most  politic. 
This  right  has  been  uniformly  re- 
served by  solemn  compacts  upon 
the  admission  of  new  States,  and 
has  heretofore  been  recognized 
and  scrupulouslj'  respected  by 
sovereign  States  within  which 
large  portions  of  the  public  lands 
have  been  comprised,  and  within 
which  much  of  those  lands  is  still 


remaining. 


And  the 


Court   also   cited  the  case  of  Wil- 
cox   vs.    Jackson,    reported    in  13 


Pet.  4g8,  which  case  presented  an 
instance  of  an  attempt  to  control 
by  the  authority  of  the  laws  of  the 
State  of  Illinois,  the  effect  and 
operation  of  a  right  or  title,  de- 
rivable from  the  Government,  to 
a  portion  of  the  public  lands,  and 
where  the  Supreme  Court  em- 
phatically declared  the  law  upon 
the  subject  of  jurisdiction  to  be: 
'We  hold  the  true  principle  to  be 
that  whenever  the  question  in  any 
Court,  vState  or  Federal,  is  whether 
a  title  to  land  which  was  once  the 
property  of  the  United  vStates  has 
passed,  the  question  must  be  re- 
solved by  the  laws  of  the  United 
vStates,  but  whenever,  according 
to  those  laws,  the  title  shall  have 
passed,  then  the  property,  like  all 
other  property  in  the  State,  is 
subject  to  State  legislation  so  far 
as  that  legislation  is  consistent 
with  the  admission  that  the  title 
passed  and  vested  according  to 
the  laws  of  the  United  States.'  " 

See  also  on  this  subject  Jourdan 
vs.  Barrett,  4  How.  185;  Bognell 
vs.  Broderick,  13  Pet.  450;  U.  S. 
vs.  Hughes,  II  How.  568;  U.  S.  vs. 
Gratiot,  14  Pet.  526. 


§  194,  195]  RIGHTS    OF    APPROPRIATORS.  303 

It  is  beyond  question  that  the  United  States  Supreme 
Court  cases  cited  above  give  the  law  upon  the  subject. 
But  it  is  argued  by  those  who  hold  that,  "If  the  water 
of  a  stream  on  the  public  land  is  appropriated,  and  the  land  is 
afterwards  patented,  the  patentee  succeeds  in  the  absence  of 
statute  to  the  right  of  the  Government,  unincumbered  bj-  the 
previous  appropriation;  "  that  the  statute  of  limitation  did 
not  run  against  the  United  States,  so  that  no  use  of  water 
while  the  title  to  the  land  is  in  the  Government  could  avail  a 
person  as  a  foundation  of  title  by  prescription,  or  defeat  or 
modify  the  title  convej-ed  to  the  grantee  by  his  patent  from  the 
Government.^  Hence,  it  was  held  by  this  class  of  authorities, 
as  a  conclusion  from  all  the  above,  that  the  Government 
of  the  United  States  in  the  absence  of  statutory  limitations 
conveyed  to  its  grantees  not  only  the  land  through  which 
a  stream  naturall}^  flows  but  also  the  stream  itself.  In  other 
words,  the  appropriation  of  water  flowing  through  the  public 
lands  could  confer  no  right  on  the  appropriator  either  against 
the  Government  or  its  patentees  whose  title  to  the  land  had 
vested  prior  to  the  Act  of  Congress  of  July  26th,  1866 — the  first 
Congressional  legislation  limiting  or  qualifying  the  effect  of 
the  Government  patent.  And  this  is  held  to  be  so  although 
the  customs,  laws  and  decisions  of  the  Courts  of  the  States 
wherein  the  lands  lie  recognized  and  enforced  rights  acquired 
by  the  prior  appropriation  of  water  in  all  controversies  be- 
tween occupants  of  the  public  lands  without  title  from  the 
Government.^ 

§195.    Same  —  Authorities    on    This  Side    Discussed.— 

That  the  above  is  held  to  be  the  law  by  some  authorities 

1  Union  M.  &  M.  Co.  vs.  Ferris,  Gibson  vs.  Chouteau,  13  Wall.  93. 
2  Saw.  176;  Vansickle  vs.  Haines,  In  the  recent  case  of  Jacob  vs. 
7  Nev.  249;  Mathew  vs.  Ferrea,  45  Lorenz  decided  by  the  Supreme 
Cal.  51;  Ogburn  vs.  Conner,  46  Court  of  California,  33  Pac.  Rej). 
Cal.  346;  Wilkins  vs.  McCue,  46  119,  that  Court  held  that  uiidvr 
Cal.  656.  the  Act  of  Congress  of  July  26tli, 

2  Union  M.  &  M.  Co.  vs.  Ferris,  1866,  that  it  vk'as  not  necessary  for 
2  vSawyer,  176;  Union  M.  &  M.  Co.  the  purposes  specified  in  Section 
vs.  Dangberg,  2  Sawyer,  450;  Lux  9  of  said  Act  that  the  rights  to 
vs.  Haggin,  69  Cal.  255;  Van-  waters  should  have  vcstt-d  before 
sickle    vs.    Haines,    7    Nev.    249;  its  passage. 


304  RIGHTS   OF    APPROPRIATORS.  [§  195 

there  can  be  no  doubt,  and  owing  to  the  vast  importance  of 
the  subject,  which  involves  property  rights  of  great  value, 
we  will  in  this  connection  examine  the  authorities  upon  both 
sides  of  the  case  at  considerable  length.     First,  in  taking  up 
the  case  of  Vansiclde  vs.  Haines,^  we  find  the  facts  to  be  as 
follows:  The  defendant  Haines  secured  his  patent  to  a  certain 
tract  of  land  on  December  28,  1864,  over  which  a  small,  non- 
navigable  stream  ran  by  the  name  of  Daggett  Creek.     The 
stream  nowhere  in  its  natural  channel  ran  over  the  land  of 
the   plaintiff,    Vansickle,    who    on    the    date   of   defendant's 
patent,    and    "long   prior    thereto,"    had    appropriated    and 
diverted  from  the  natural  channel  of  the  creek  for  his  neces- 
sary purposes  a  portion  of  the  water  of  the  stream,   which 
appropriation  was  interfered  with  by   Haines  in  December, 
1867;  and  since  that  time  Haines  had  used  all  or  nearly  all  of 
the  waters  of  the  creek.     From  this  state  of  facts  the   trial 
Court,  in  a  suit  by  Vansickle  as  prior  appropriator  against 
Haines,   for  damages   and   an    injunction,    decided   that    the 
plaintiff  had  acquired  such  a  right  by  his  appropriation  as 
should  be  protected  in  equity. ^     The  defendant  appealed  the 
case,  and  the  Supreme  Court  reversed  the  decree  of  the  trial 
Court  and  remanded   the  cause,    with   instructions  to   enter 
decree  for  appellants.     In  denying  the  petition  for  a  re-hear- 
ing before  the  Supreme  Court  that  Court  rendered  a  very 
lengthy  and  exhaustive  opinion,  wherein  all  the  common  law 
authorities  are  collected  and  the  law  as  that  Court  then  inter- 
preted it  to  be  was  stated  in  the  "  clearest  and  most  satisfac- 
tory manner."     In  fact  this  opinion  is  cited  in  many  of  the 
subsequent  cases  bearing  upon  this  point  as  being  the  leading 
case  upon  the  subject.     After  discussing  and  quoting  several 
common  law  authorities,  Mr.  Chief  Justice  Lewis,  in  render- 
ing the  opinion  of  the  Court  upon  the  question,  said:    "Being 
an  incident  to  the  soil,  treated  in  other  respects  like  other 
incidents  to  the  land;  being,    as  some   Courts   say,  as  much 
a  part  of  the  soil  as  the  stones  or  trees  upon  it,  upon  what 
principle  can  it  be  contended  that  the  United  States,  which  is 

1  y  Nev.  249.  those  of  the  supposed  case  in  the 

2  It  will  be  noticed  that  the  facts       premises  of  this  discussion.     See 
in   this   case    are    identical    with       Ante  Section  192. 


§195]  RIGHTS    OF    APPROPHIATORS.  305 

the  source  of  all  title,  which  has  as  complete  and  absolute 
an  ownership  to  the  soil  as  can  possibly  be  acquired,  does  not 
like  other  owners  of  land  possess  this  most  inseparable  inci- 
dent to  it,  that  which  is  a  part  of  it,  and  without  which,  in  many 
cases,  the  land  itself  would  be  of  no  value?  If  it  has  not  the 
same  right  to  running  water  that  other  proprietors  of  land 
have  then  au}^  individual  may  divert  streams  from  land 
belonging  to  it  without  regard  to  whether  it  may  desire  to 
make  use  of  them  at  some  future  time;  and  so,  in  many  cases 
perhaps  render  thousands  of  acres  of  land  utterly  worthless, 
which  otherwise  would  be  valuable  and  find  a  ready  market. 
So,  too,  as  no  person  can  get  a  better  or  more  complete  title 
than  that  which  the  United  States  itself  has,  no  one  claiming 
by  patent  under  it  can  possess  the  right  which  is  so  univers- 
ally conceded  to  all  persons  owning  land  upon  or  over  which 
streams  of  water  flow,  but  must  be  confined  to  such  rights  as 
may  be  acquired  by  actual  appropriation  or  use,  which  would 
be  a  condition  of  things  existing  in  no  country  in  the  world 
where  the  full  title  is  in  the  individual.  If,  as  we  have  shown, 
the  water  naturally  flowing  through  the  land  is  an  incident 
or  a  part  of  the  land  itself,  whence  the  authority  in  a  State 
Court  to  hold  that  such  incident  does  not  attach  to  the  land 
belonging  to  the  United  States?"  After  citing  several  common 
law  authorities  he  saj's:  "  These  authorities  completely  over- 
turn the  argument  for  the  petitioner  in  this  case,  for  if  the 
right  be  one  inseparably  incident  to  the  land;  if  the  right  to 
have  the  stream  continue  its  flow  in  its  natural  channel  does 
not  grow  out  of  or  depend  upon  any  special  user;  or  if,  in  the 
language  of  the  cases,  the  owner  of  the  land  on  a  stream  is 
necessarily  and  at  all  times  using  the  water  running  through 
it  without  any  act  of  his  own,  by  the  fertility  which  its  natu- 
ral flow  imparts  to  the  soil,  then  it  follows  that  the  United 
States  is  as  capable  of  enjoying  the  right  as  an  individual,  as 
its  land  will  be  no  less  benefitted  by  the  natural  flow  of  the 
stream  than  that  of  a  citizen,  nor  would  the  diversion  of  it 
be  any  less  injurious  to  it  than  it  would  to  an  individual  who 
is  making  no  special  appropriation  of  it.  Indeed,  the  whole 
argument  is  based  upon  the  assumption  that  the  rijiarian 
proprietor  has   no  right  to  have  a  stream  continue  its  (low 


306  RIGHTS    OF    APPROPRIATORS.  [§195 

through  his  land  unless  he  has  some  special  use  to  make  of 
it,  or  has  made  some  particular  appropriation  of  it;  whereas 
every  case  which  has  ever  come  under  the  observation  of  the 
Court  (and  they  are  numerous)  holds  the  contrary."  The 
Court  concludes  the  argument  upon  the  point  as  follows: 
"Indeed,  nothing  is  clearer  than  that  an  occupant  of  any 
portion  of  the  public  land  has  no  more  right  as  against  the 
United  States,  to  enter  upon  other  portions  of  it  and  divert  it 
from  a  water  course, than  would  he  if,  instead  of  belonging  to 
the  United  States,  it  were  the  property  of  an  individual,  for 
its  title  to  the  soil  is  as  absolute  and  complete  as  the  most 
perfect  title  which  an  individual  can  obtain,  and  has  all  the 
remedies  for  protecting  its  property  which  the  citizen  has, 
and  even  more.  If  Vansickle  had  no  right  to  enter  upon  the 
land  of  an  individual  for  this  purpose  he  would  have  no 
greater  right  respecting  land  which  is  public.  And  as  an 
individual  would  have  a  right  to  claim  the  return  of  a  stream 
if  it  was  diverted,  so  with  the  Government.  And  all  the 
right  or  title  which  the  United  States  had  in  the  land  of 
Haines  was  conveyed  to  him  by  patent,  and  the  patent  neces- 
sarily carried  with  it  the  stream  running  through  the  land 
as  an  incident  to  it,  together  with  the  right  to  have  it  returned 
to  the  land  if  diverted."^ 

Then,  after  citing  several  California  cases  to  show  that  the 
parties  in  certain  water  right  contracts  in  that  State  were  not  the 
owners  of  the  soil,  and  therefore  the  common  law  rule  did  not 
apply,  he  concluded  the  entire  argument  by  saying:  "That 
this  is  the  reason  upon  which  the  California  cases  and  those 
formerly  rendered  in  this  State  is  based,  and  that  the  common 
law  was  not  applicable  because  of  the  fact  that  the  persons 
claiming  had  not  the  title  to  the  land,  is  so  familiar  to  the 
profession  that  it  is  incomprehensible  how  they  can  be  referred 
to  as  authority  in  a  case  like  this,  where  the  absolute  title  to 
the  land  is  in  the  parties,  and  the  appellant  is  claiming  the 
right  to  the  water,  not  as  was  done  in  the  California  cases  by 
virtue  of  prior  appropriation,  which  was  the  only  right  upon 

1  Citing  Cook  vs.  Foster,  i  Gil.  381;  Colvin  vs.  Burnett,  2  Hill.  620. 
6.52;  Wilcoxon  vs.  McGee,   12  III. 


§  195,  196]  RIGHTS   OF   APPROPRIATORS.  307 

which  it  could  then  be  claimed,  but  b}'  virtue  of  his  patent; 
by  virtue  of  having  the  complete  right  which  the  United 
States  had.  It  will  be  readily  perceived,  then,  that  the  cases 
referred  to  have  no  pertinency  whatever  to  the  question  in- 
volved in  this  case.  Being  fully  satisfied  with  the  former 
opinion  we  must  den}^  a  rehearing." 

And  Associate  Justice  Garber,  in  concurring,  especially  said: 
"  If  I  believed  that  a  re-argument  could  throw  any  additional 
light  on  the  subject  involved,  I  should  unhesitatingly  advise 
the  granting  of  the  petition.  Because  I  feel  sensibly  that  the 
decision  we  have  been  compelled  to  render,  in  obedience  to 
the  law  as  it  is  written,  and  which  it  is  our  function  to  declare 
and  not  to  alter,  may  work  great  hardship  in  this  particular 
case,  and,  as  a  general  rule  applicable  to  a  certain  class  of 
patents  ma}^  disappoint  expectations  long,  though  erroneously, 
considered  by  the  public  as  well  founded.  Unfortunately, 
this  is  not  a  case  where  such  common  error  can  be  said  to 
have  made  itself  law;  and  after  as  thorough  an  investigation 
as  I  am  capable  of  making,  I  feel  constrained  to  concur  in  the 
the  position  so  fully  elaborated  by  the  Chief  Justice,  that  on 
every  point  essential  to  the  case,  petitioner,  not  merely  the 
weight  of  authority,  but  all  the  authorities  are  against  him." 

§  196.  Same. — Continued. — The  decision  in  the  above  case 
was  also  affirmed  in  the  Ninth  Circuit  Court  of  the  United 
States  in  the  case  of  the  Union  Mill  and  Mining  Company  vs. 
Ferris,^  which  was  also  a  Nevada  case,  decided  in  the  year 
1872,  and  Mr.  Justice  Hillyer,  in  rendering  the  opinion,  said: 
"  We  consider  it  entirely  clear  that  before  the  title  to  these 
lands  was  acquired  from  the  Government  of  the  United  States 
no  occupancy  or  appropriation  of  water  by  either  party,  no 
State  or  Territorial  legislation,  or  rule  of  decision  established 
by  the  State  Courts  in  controversies  between  occupants  of  the 
public  lands  without  title  from  the  Government,  can  in  any 
manner  qualify,  limit,  restrict  or  affect  the  operation  of  the 
Government  patent;  that  the  Government  has  a  perfect  title 
to  the   Government  lands,  and  an  absolute   and  unqualified 

J  2  Sawyer,  179. 


308  RIGHTS    OF    APPROPRIATORS.  [§  J96 

right  to  disposal;  that  a  stream  of  running  water  is  a  part  and 
parcel  of  the  land  through  which  it  flows,  inseparably  an- 
nexed to  the  soil,  and  the  use  of  it  as  an  incident  to  the  soil 
passes  to  the  patentee  who  can  be  deprived  of  it  only  by  grant 
or  by  the  existence  of  circumstances  from  which  it  is  the 
policy  of  the  law  to  presume  a  grant;  that  the  Government, 
as  proprietor  of  the  land  through  which  a  stream  of  water 
naturally  flows,  has  the  same  property  and  right  in  the  stream 
that  any  other  owner  of  land  has,  be  it  usufructuary^  or  other- 
wise, and  that  a  statute  of  limitation  does  not  run  against  the 
United  States.  Upon  the  foregoing  propositions  it  is  not 
deemed  necessary  to  enlarge.  They  seem  incontestable. 
We  shall  content  ourselves  with  a  reference  to  Vansickle  vs. 
Haines,  7  Nev.  249,  wherein  the  authorities  are  collected 
and  the  law  stated  in  the  clearest  and  most  satisfactory  man- 
ner; and  the  case  of  Gibson  vs.  Chouteau,  13  Wall.  93." 

And  upon  the  claim  that  the  Act  of  Congress  of  July  26tli, 
1866,  confirmed  the  rights  of  those  who  had  prior  to  that  Act 
acquired  rights  in  streams  by  appropriation,  the  Court  said: 
"  But  the  Act  is  prospective  in  its  operation  and  cannot  be 
construed  so  as  to  divest  a  part  of  an  estate  granted  before  its 
passage.  If  it  be  admitted  that  Congress  has  the  power  to 
divest  a  vested  right  by  giving  a  statute  a  retrospective  opera- 
tion that  interpretation  will  never  be  adopted  without  abso- 
lute necessity.^  As  this  law,  being  general  in  its  terms,  can- 
not be  held  to  operate  retrospectiveh',  it  follows  that  the  de- 
fendant's patent  of  June  15th,  1865,  and  the  complainant's  of 
September  15th,  1864,  are  in  no  manner  qualified  by  this  Act, 
passed  subsequent  to  their  issue .  As  against  these  patents 
neither  can  claim  any  right  to  the  use  of  the  water  b}-'  virtue 
of  prior  appropriation  or  possession,  but  in  respect  to  them 
their  rights  to  the  water  must  be  fixed  by  the  law  applicable 
to  them  as  owners  of  the  soil  through  which  the  stream 
naturally  flows.  But  if  when  the  Act  was  passed  the  de- 
fendant had  such  a  right  by  priority  of  possession  as  that  Act 
contemplates,  upon  the    construction  which  must  be  given, 

1  2  Sawyer,  185,  citing  Blanchard       sickle  vs.  Haines,  7  Nev.  249. 
vs.  Sprague,  3  Sumner,  535;  Van- 


§196,    197J  RIGHTS    OF    APPROPKIATOKS.  309 

that  right  is  confirmed  in  him  and  he  is  entitled  to  protection 
as  against  one  claiming  as  riparian  proprietor  merely  through 
a  patent  issued  after,  and  when  no  right  had  vested  in  the 
patentee  before  the  Act  became  a  law.  The  statute  is  in  effect 
incorporated  into  such  subsequent  patents,  and  operates  as  an 
exception  out  of  the  estate  granted  to  the  complainant  by  the 
patent  of  October  loth,  1866.  If  we  have  rightly  inter- 
pretated  the  Act  of  Congress,  and  the  operation  of  the  patent 
issued  before  and  after  the  passage  of  that  Act  is  as  we  have 
stated,  the  case  stands  in  this  wise:  The  defendant's  claim, 
by  virtue  of  adverse  enjoyment,  falls  to  the  ground,  because 
sufficient  time  has  not  elapsed  since  the  lower  premises  were 
conveyed  by  the  Government.  He  cannot  sustain  his  claim 
by  force  of  the  Act  of  Congress,  because  the  complainant's 
patents  of  September,  1864,  were  made  before  the  Act  was 
passed  and  conveyed  the  upper  premises  absolutely  and  free 
from  any  claims  by  prior  possession  merely." 

§197.  Comments    Upon   Above    lluliiij^s.— There    is    no 

doubt  that  the  rulings  as  above  set  forth  have  worked  great 
hardships  in  many  particular  cases,  but  that  it  was  considered 
the  law  by  this  line  of  authorities,  at  least  at  one  time,  there 
can  be  no  question.  As  Associate  Justice  Garber  said  upon 
the  proposition,  in  concurring  in  the  opinion  in  the  case  of 
Vansickle  vs.  Haines,  supra:  "  I  feel  constrained  to  concur 
in  the  proposition  so  fully  elaborated  by  the  Chief  Justice 
that  on  every  point  essential  to  the  case  of  the  petitioner,  not 
merely  the  weiglit  of  authority,  bid  all  the  authorities  are 
against  him:'  It  was  a  rule  that  was  applied  only  to  that 
class  of  patents  i.ssued  prior  to  the  26th  July,  1 866— the  date 
of  the  first  Congressional  Act  restricting  or  limiting  in  any 
manner  patents  issued  by  the  United  States  for  any  portion 
of  the  public  domain.  And  the  cause  of  the  passage  of  this 
limiting  Act  on  the  part  of  the  Government  can  be  readily 
seen  by  those  who  understand  the  history  of  the  case.^ 


1  vSee  on  Uiis  siil>ject  Cliajjlcr  IV,        Kirk,  gS  U.  S.  453. 
Section     113,     114;    Jcniiison    vs. 


310  RIGHTS    OF    APPROPRIATORS.  [§  198 

§  IDS.  Criticism  of  Yausicklle  vs.  Haines,  and  the  Doc- 
trine Therein  Expressed. — Our  own  views  upon  the  subject 
are  somew^hat  different  from  the  doctrine  laid  down  in  the 
leading  case  of  Vansickle  vs.  Haines,  supra.  For  eighteen 
years  prior  to  the  time  when  this  Act  of  Congr  ess  was  passed 
the  lands  of  the  arid  region  had  been  occupied,  and  the 
waters  of  the  streams  and  lakes  thereon  had  been  diverted  by 
citizens  of  the  United  States  without  any  objection  whatever 
on  the  part  of  the  Government.  First,  the  mines  had  called 
people  to  this  part  of  the  country;  and  after  the  mining 
excitement  had  died  out,  finding  the  climate  good  and  that 
by  turning  upon  the  soil  the  waters  of  the  natural  streams 
almost  anything  in  the  line  of  fruits  or  grains  could  be  raised, 
many  who  were  called  to  the  country  by  the  mines  settled 
down  to  agricultural  pursuits,  besides  those  who  came 
especially  for  that  purpose.  Fruitful  California  to-day  bears 
witness  to  the  good  judgment  of  these  early  settlers.  And 
we  may  add  further  that  the  change  from  almost  a  desert  to 
the  present  condition  of  that  State  has  been  brought  about 
almost  entirely  by  irrigation.  Canals  and  ditches  were  dug 
during  these  earl)^  times,  and  the  waters  of  natural  streams 
and  lakes  diverted  for  mining,  agricultural  and  other  bene- 
ficial purposes.  Possessory  rights  to  public  lands,  mining 
claims  and  the  water  necessary  for  irrigating  or  working  the 
same  were  regulated  b}^  local  customs.  State  statutes,  and 
enforced  in  the  State  Courts.  The  Courts  not  applying  the 
doctrine  of  the  common  law  respecting  riparian  owners  in 
deciding  between  these  possessors  of  water  rights,  none  of 
whom  had  title  to  the  soil,  recognized  a  species  of  property 
in  running  water,  and  held  that  he  who  had  first  appropriated 
the  waters  of  a  natural  stream  to  a  beneficial  purpose,  had  to 
the  extent  of  his  appropriation,  the  better  right  as  against  all 
persons  appropriating  water  from  the  stream  subsequently  to 
him.  But  as  time  went  on  the  lands  were  surveyed  by  the 
Government,  with  a  view  of  course  to  the  sale  of  the  same, 
and  persons  who  had  constructed  canals  and  ditches  saw  that 
when  those  lands  adjoining  the  streams  from  which  they  took 
the  water,  or  through  which  their  ditches  and  canals  ran  were 
sold,  they  would,  without  some  protective  legislation,  be  at 


§  198,  199]  RIGHTS   OF    APPROPRIATORS.  311 

the  mercy  of  the  purchasers  of  the  legal  title  to  the  soil. 
And  it  was  wholly  this  question  of  protection  to  these  posses- 
sory rights  already  acquired  in  and  to  the  waters  of  streams 
that  caused  the  passage  of  the  9th  Section  of  the  Act  of  Con- 
gress of  July  26th,  1866,  and  called  forth  the  great  speech  of 
Senator  Stewart,  which  has  been  taken  as  authority  by  the 
Supreme  Court  of  the  United  States  as  to  the  cause  of  the 
passage  of  that  Act.^  Now  the  question  naturally  arises,  in 
view  of  all  the  history  as  to  the  cause  of  the  passage  of  this 
Act  of  Congress  of  1866,  if  it  was  not  to  protect  the  rights  of 
waters,  ivhich  had  already  accrued,  prior  to  the  lime  of  its  pas- 
sage, why  zoas  the  Act  passed  at  all?  The  Act  was  certainly 
passed  to  protect  these  rights  in  ivaters  zvhich  had  already  ac- 
crued, This  interpretation,  it  seems  to  us,  is  the  only  one 
consistent  with  the  history  and  cause  of  the  passage  of  the 
Act,  the  language  of  the  Act  itself,  and  its  subsequent  inter- 
pretation by  the  Courts.^ 

§  19i).  Same.— Authorities  Discussed.— We  are  aware  of 
the  fact,  in  criticising  the  doctrine  laid  down  in  the  opinion  of 
\'ansickle  vs.  Haines,  which  is  considered  a  leading  case 
upon  that  side  of  the  question,  that  there  are  some  very  high 
authorities  which  can  be  cited  in  support  of  the  doctrine 
therein  set  forth.  That  case  was  decided  in  January,  1872, 
and  it  was  an  opinion  which  for  a  number  of  years  thereafter- 
wards  was  quoted  as  almost  absolute  authority  upon  the  prop- 
osition that  a  person  acquiring  a  title  to  land  through  which 
or  adjoining  which  a  stream  of  water  ran  prior  to  the  Act  of 
Congress  of  1866  succeeded  to  the  right  of  the  Government, 
unincumbered  by  any  previous  appropriation  of  the  waters  of 
the  stream.  And  among  these  high  authorities  is  the  opinion 
of  Mr.  Justice  Hillyer,   of  the   Ninth   Circuit   Court  of  the 


1    Ante  Chapter  IV,  vSectiou    114;  Reno  vS.   M.  Co.  vs.  Stevenson, 

Jennison  vs.  Kirk,  98  U.  vS.  453.  20  Nev.  269.   aflhnunK  Jones   vs. 

2See  Jones  vs.  Adams,   19  Nev.  Adams,  supra. 

78,  expressly  overrulin.s^  the  doc-  Jennison  vs.   Kirk,  98  U.  S.  453; 

trine  laid  down  in  Vansickle  vs.  Hroder  vs.  Naloma  Water  Co.,  loi 

Haines,  7  Nev.  249.  U.  S.  274. 


312  RIGHTS    OF    APPR.OPRIATORS.  [§  199,  200 

United  States,  in  the  case  of  the  Union  Mill  and  Mining  Co. 
vs.  Ferris/  decided  in  May  of  the  same  year  as  Vansickle  vs. 
Haines,  in  which,  after  stating  what  was  practically  the  doc- 
trine laid  down  in  the  latter  case,  he  said:  "On  the  foregoing 
propositions  it  is  not  deemed  necessary  to  enlarge;  they  seem 
incontestable,  and  we  shall  content  ourselves  with  reference 
to  the  case  of  Vansickle  vs.  Haines,  7  Nev.  249,  where  the 
authorities  are  collected,  and  the  law  stated  in  the  clearest 
and  most  satisfactory  manner." 

In  Pomeroy  on  Riparian  Rights  a  work  published  in  1887, 
about  twent}'  pages  are  used  in  discussing  this  case  and  in 
sanctioning  the  doctrine  therein  set  forth;  and  the  same 
identical  language  is  adopted  in  the  late  work  published  in 
1893,  Black's  Pomeroy  on  Water  Rights.^ 

And  referring  in  these  two  works  to  the  opinion,  the  author 
says:  "But  the  decision  itself  is  so  important,  and  the  opinion 
of  Chief  Justice  Uewis  is  so  able,  learned  and  exhaustive  that 
no  excuse  is  needed  for  the  long  extracts  which  I  have  made. ' '  •' 
Also  in  that  most  valuable  work,  Gould  on  Waters,  second 
edition,  published  in  1891,  in  section  240,  the  author  says: 
"The  United  States,  as  proprietor  of  the  public  lands,  has 
the  same  rights  and  property  in  the  streams  flowing  through 
such  lands  that  would  be  possessed  by  any  riparian  proprietor; 
and  in  the  absence  of  legislation  by  Congress  limiting  the 
effect  of  the  grant,  patents  for  public  lands  from  the  general 
Government  pass,  together  with  the  fee  of  the  soil,  and,  as 
incident  thereto  the  benefit  of  all  natural  streams  which  flow 
through  them."  ^ 

§  200.    Same.— Siiiiie.— Common    Law    of   England.— In 

spite  of  the  great  array  of  authorities  against  us,  quoted 
above,  we  shall  endeavor  to  demonstrate  in  the  following  dis- 
cussion that  the  theories  advanced  in  the  case  of  Vansickle 
vs.  Haines  are  not  at  least  the  present  law  upon  the  subject, 

1  2  Sawyer,  179,  SPomeroy  on  Riparian   Rights, 

2  See  Pomeroy  on  Riparian  P.  201;  Black's  Pomeroy  on  Water 
Rights,     Sees.      1 19-120;     Black's       Rights,  P.  257. 

Pomeroy  on  Water  Rights,  Sees.  4  citing   Vansickle    vs.    Haines, 

134-135.  supra. 


§  200,  201]  RIGHTS    OF    AITROPKIATORS.  313 

if  they  were  at  the  time  that  case  was  decided.  In  the  first 
place,  the  theory  upon  which  that  case  was  decided,  as  will 
be  readih'  seen,  was  that  the  Court  considered  the  language 
of  the  statute  adopting  the  common  law  as  also  adopting  the 
riparian  rights  of  that  law  as  understood  and  expounded  by 
the  English  and  American  authorities  thereon,  and  rejected 
all  consideration  of  the  question  as  to  whether  that  law  was 
suited  or  unsuited  to  the  condition  and  necessities  of  the  dry 
arid  State  of  Nevada.  The  statute  in  force  at  the  time  of  the 
decision  was:  "  The  common  law  of  England,  so  far  as  it  is 
not  repugnant  to  or  inconsistent  with  the  Constitution  or  laws 
of  the  United  States,  or  the  laws  of  the  Territory  of  Nevada, 
shall  be  the  rule  of  decision  in  all  courts  of  this  Territory."^ 
And  when  Nevada  became  a  State  the  above  enactment  was 
adopted  in  the  Constitution  by  the  following  clause:  "All 
laws  of  the  Territory  of  Nevada  in  force  at  the  time  of  the  ad- 
mission of  this  State,  not  repugnant  to  this  Constitution,  shall 
remain  in  force  until  they  expire  by  their  own  limitations  or 
be  altered  or  repealed  by  the  Eegislature."" 

As  will  be  noticed,  the  section  is  entirely  silent  upon  the 
subject  as  to  the  applicability  or  non-applicability  of  the  com- 
mon law  or  anj^  portion  thereof  to  the  conditions  or  necessi- 
ties of  the  State  of  Nevada.  In  the  opinion  in  question  upon 
this  point  the  Court  said  after  quoting  the  section  of  the 
statute  as  above:  "  Hence,  although  the  common  law  might 
in  the  opinion  of  judges,  be  inapplicable,  still,  if  not  in  con- 
flict with  the  Constitutional  laws  of  the  United  States  or  the 
Constitution  or  laws  of  Nevada,  it  must  nevertheless  be  en- 
forced." We  do  not  think  that  this  is  the  rule  adopted  by  the 
various  courts  of  this  country,  as  we  shall  endeavor  to  show  in 
the  next  section. 

§201.    Same.  —  Comniou    Law   of   Eiii;lainl.  —  Adopted 

When. — The  common  law  of  England  must  be  understood 
as  having  been  adopted  only  in  cases  where  it  is  applicable  to 
the  habits,  necessities  and  conditions  of  our  society,   and  in 

1  vStat.  Nev.  l86[,  Page  I.  2  Sec;    Constitution    of    N.-v.i.l.i, 

Art.  XVII.,  vSec.  2. 


314 


RIGHTS    OF    APPROPRIATORS. 


[§201 


harmony  with  the  genius,  spirit  and  objects  of  our  institu- 
tions.^ That  the  above  rule  is  the  law  there  can  be  no  doubt, 
and  upon  this  subject  Mr.  Justice  Story,  in  rendering  the 
opinion  of  the  Supreme  Court  of  the  United  States  in  the 
case  of  Van  Ness  vs.  Packard,"  said:  "  The  common  law  of 
England  is  not  to  be  taken  in  all  respects  to  be  that  of 
America.  Our  ancestors  brought  with  them  its  general  prin- 
ciples and  claimed  it  as  their  birth  right;  but  they  brought 
with  them  and  adopted  only  that  portion  which  was  applicable 
to  their  situation."'^ 

From  the  above  authorities  we  are  of  the  opinion  that  no 
doctrine  is  better  settled  in  the  United  States  than  that  such 
portions  of  the  common  law  of  England  as  are  not  adapted  to 
the  necessities,  condition  and  society  of  our  people  form  no 
part    of  the   law    of  this   country.     Its   applicabilitj"  to  the 


1  I  Kent's  Com.  472,  536:  State 
vs.  Calvin.  Charl.(Ga.)  166;  Barlow 
vs.  Lambert.  28  Ala.  704;  65  Am. 
Dec.  374. 

Boyer  vs.  Swett,  3  Scam.  120, 
where  it  was  held  that  the  com- 
mon law  is  adopted  in  the  State  of 
Illinois  by  general  legislative 
enactment,  but  this  must  be  un- 
derstood only  in  those  cases  where 
that  law  is  applicable  to  the  habits 
and  conditions  of  the  societ}'  of 
that  State,  and  is  in  harmony  witli 
the  genius,  spirit  and  objects  of 
the  State. 

See  also  Stuart  vs.  People,  3 
Scam.  404;  Penny  vs.  Little,  3 
Scam.  301;  Pultney  vs.  Ross,  i 
Dall.  238;  vSeeley  vs.  Peters,  5  Gil- 
man,  150;  Shewell  vs.  I'ell,  3 
Yeates.  17;  Lindsley  vs.  Coats,  r 
Ohio,  243;  Carson  vs.  Blazer,  2 
Bin.  475;  4  Am.  Dec.  463;  Shrunk 
vs.  vSchuylkill  N.  Co.,  14  S.  &  P. 
71;  Morgan  vs.  King,  30  Barb,  g; 
Wagner  vs.  Bissell,  3  Iowa,  396; 
Norris  vs.  Harris,  15  Cal.  226;  Le 
Barron  vs.  Le    Barron,  35   Vt.  365; 


United  States  vs.  Worrall,  2  Dall. 
384;  Sackett  vs.  Sackett,  8  Pick. 
309;  McClintock  vs.  Bryden,  5  Cal. 
100;  63  Am.  Dec.  87,  and  note; 
People  vs.  Canal  Appraisers,  33  N. 
Y.  482;  Ex-Parte  Blanchard,  9 
Nev.  105;  Evans  vs.  Cook,  11  Nev. 
74;  Clark  vs.  Clark,  17  Nev.  128. 

2  2  Peters,   144. 

3  Bogardus  vs.  Trinity  Church,  i 
Paige,   198. 

In  the  vStates  where  the  common 
law  has  not  l)een  adopted  by  legis- 
lative enactments  courts  have  pro- 
ceeded upon  the  hypothesis  of  its 
adoption,  subject  alwa^'s  to  its  ap- 
plicability to  the  localit}'. 

Stout  vs.  Keyes,  2  Doug.  (Mich.) 
184;  43  Am.  Dec.  465. 

Lorman  vs.  Benson,  8  Mich.  18; 
77  Am.  Dec.  435,  where  the  Court 
held  that  the  questions  of  property 
not  clearly  exempted  by  it  must 
be  determined  by  the  common 
law,  modified  only  by  such  cir- 
cumstances a.i,  render  it  inap- 
plicable to  local  affairs. 


§  201,  202]  RIGHTS    OF    APPROPRIATORS.  315 

physical  conditions  and  necessities  of  an}'  State  or  Territory  of 
this  countr}'  imist  be  taken  into  consideration,  bearing  in  mind 
that  the  common  law  was  framed  with  special  reference  to  the 
phj'sical  condition  of  a  country  and  the  needs  of  a  people  dif- 
fering widely  from  our  own.  Hence  it  follows  that  the  com- 
mon law  theory  of  riparian  rights,  applicable  in  the  country 
where  it  was  first  adopted  on  account  of  its  damp,  humid  cli- 
mate and  atmosphere,  is  entirely  inapplicable  to  the  condi- 
tions and  necessities  of  the  arid  region  of  the  United  States, 
of  which  the  State  of  Nevada,  with  its  hot,  dry  climate  and 
parched  soil,  is  a  good  example.^ 

§  30'2.  Same.— Criticism  of  Vaiisickle  vs.  Haines  Con- 
tinued.— A  second  ground  of  our  argument  that  the  Court 
erred  in  its  decision  in  the  case  of  Vansickle  vs.  Haines,  as 
well  as  have  all  the  Courts  and  authorities  erred  in  fol- 
lowing the  doctrine  therein  laid  down,  is  based  upon  the  fact 
that  for  a  period  of  eighteen  years  the  Government  of  the 
United  States  by  its  silent  acquiescence  had  assented  to  and 
encouraged  the  appropriation  and  diversion  of  the  waters  of 
streams  and  lakes  upon  the  public  domain  for  the  purpose  of 
mining  and  agricuTture.  And  this  acquiescence  and  consent, 
prior  to  any  Act  of  Congress  relative  to  this  use  of  water, 
amounted  to  a  license  on  the  part  of  the  Government  to  those 
so  using  the  water,  which  license  it  is  true  might  have  been 
revoked  at  any  time  by  the  Government,  but  which  instead 
was  actually  ratified  and  confirmed  by  the  nintli  section  of  the 
Act  of  July  26tli,  i866.  This  Act  simply  put  in  statutory 
language  what  the  Government  had  before  licensed,  and  gave 
the  owners  of  water  rights  upon  the  public  lands  of  tlie  United 
States  the  continuation  of  the  same  right  which  tliey  held 
under  the  local  customs,  laws  and  decisions  of  the  courts  prior 
to  its  enactment.  The  authorities  upon  whicli  we  shall  base 
this  proposition  we  shall  take  the  liberty  to  discuss  and  quote 
at  considerable  length,  as  the  question  is  one  of  the  utmost 
importance. 

1  Atchison  vs.  Peterson,  2o  Willi.  son,  20  Nev.  280;  Mr.  Justice 
507;  Jones  vs.  .^dains,  19  Nev.  78;  Ross  in  di.ssentinfj  oi)inion  of  Lux 
Reno  S.  M.  lS:  R.  Wks.  vs.  Steven-       vs.  Ilagfjin,  69  Cal.  450. 


316  RIGHTS    OF    APPKOPRIATORS.  [§  203 

§  203.  Same. — Same. — Authorities  Discussed. — The  case 
of  lyUx  VS.  Haggin  ^  was  decided  in  i866  by  the  Supreme 
Court  of  California,  and  upon  a  majority  vote  of  the  Justices 
thereof  Mr.  Justice  McKinstry  rendered  the  majority  opinion, 
with  three  other  Justices,  McKee,  Sharpstein  and  Thornton 
concurring;  Mr.  Chief  Justice  Morrison,  Justices  Myrick  and 
Ross,  dissenting — the  last  two  Justices  rendering  separate 
dissenting  opinions.  Mr.  Justice  Myrick  as  one  of  the  grounds 
of  his  dissenting  opinions  said :  "I  do  not  think  that  the 
adoption  of  the  common  law  of  England  b}-  the  Act  of  the 
Legislature  of  this  State  of  April  13,  1850,  was  intended  to 
or  did  establish  a  rule  of  decisions  as  to  the  right  of  appro- 
priation of  water  for  irrigation.  The  land  of  the  birth  of  the 
common  law  of  England  had  no  occasion  to  consider  or  act 
upon  the  necessity  for  irrigation,  and  appropriation  was  not 
within  the  scheme  of  its  lavv^s.  The  rights  of  riparian  owners 
(whatever  they  were)  had  reference  to  the  country  and  its 
needs,  of  which  irrigation  was  not  an  essential  part." 

Mr.  Justice  Ross,  after  discussing  the  authorities  at  length 
and  the  general  applicability  of  the  common  law  to  the  con- 
dition of  the  State,  said:  "  It  seems  to  me,  therefore,  that 
this  Court  in  the  late  case  of  Osgood  vs.  Water  and  Mining 
Company,  reported  in  56  Cal.  571,  was  entirely  justified  in 
saying,  as  it  did,  that  '  the  principle  of  prior  appropriation  of 
water  on  the  public  lauds  in  California,  where  its  artificial  use 
for  agricultural,  mining  and  other  like  purposes  is  absolutely 
essential,  which  has  all  along  been  recognized  and  sanctioned 
by  the  local  customs,  laws  and  decisions,  was  expressly  rec- 
ognized and  sanctioned  by  the  Supreme  Court  of  the  United 
States  and  also  by  the  Act  of  Congress  of  1866.'  It  was  this 
principle,  and  nothing  else,  that  secured  the  defendant  in  the 
case  of  Broder  vs.  Water  Company,  loi  U.  S.  276,  in  the  con- 
tinued enjoyment  of  the  water  it  had  appropriated  as  against  a 
grant  froDi  the  Government  antedating  tJie  Act  of  1866,  for  the 
Court  in  terms  declares:  '  We  do  not  think  that  the  defendant 
is  under  the  necessity  of  relying  on  that  statute.'  The  defen- 
dant had  acquired  the  right  to  divert  the  water  from  its  natu- 

1  69  Cal.  255,  4490;  10  Pac.  Rep.  675, 


§203.]  RIGHTS    OF    APPROPRIATORS.  3l7 

ral  channel  and  appropriate  it  to  a  useful  purpose,  because  the 
Government,  in  view  of  the  necessities  of  the  country,  which 
were  widely  different  from  those  of  the  country  from  which 
the  common  law  was  taken,  had  by  its  conduct  through  a  long 
series  of  3-ears,  recognized  and  encouraged  such  diversions  and 
use  of  the  waters  upon  the  public  lands.    The  Government  per- 
mitted the  principle  of  appropriation  of  such  waters  to  grow  up 
and  become  a  part  of  the  law  in  relation  to  the  public  land,  and 
therefore    in  construing  the  grant  from  the  Government  the 
Court  considered  it  with  reference  to  the  principle  of  appropria- 
tion, and  protected  the  rights  of  defendant  which  arose  under 
and  by  virtue  of  that  principle.     The  common  law  doctrine 
of  riparian  rights  being  wholly  inconsistent  with  and  antago- 
nistic to  that  of  appropriation,  it  necessarily  follows  that  when 
the  Federal  and  State  Governments  assented  to,  recognized, 
and  confirmed  the  doctrine  of  appropriation,  with  respect  to  the 
waters  upon  the  public  lands  they  in  effect  declared  that  that  of 
riparian  rights  did  not  apply.     The  doctrine  of  appropriation 
then   established   was  not   a  temporar}'   thing,  to  exist  only 
until  some  one  should  obtain  a  certificate  or  patent  for  forty 
acres  or  some  other  sub-division  of  the  public  lands  bordering 
upon  the  river  or  other  stream  of  water.     It  was,  as  has  been 
said,  born  of  the  necessities  of  the  country  and  its  people,  the 
growth  of  3'ears,  permanent  in   its  character,  and  fixed  the 
status  of  water -rights  with  respect  to  public  lands.     No  valid 
reason  exists  why  the  Government,  which  owns  both  the  land 
and  water,  could  not  do  this.     It  thus  became,  in  my  judg- 
ment, as  much  a  part  of  the  law  of  the  land  as  if  it  had  been 
written  in  tervis  in  the  statute  books,  and  in  connection  with  xvhich 
all  grants  of  public  land  from  either  Government  should  read. 
In  the  light  of  the  history  of  the  State  and  of  the  legislation 
and   decisions  with  respect  to  the   subject   in  question  is  it 
possible  that  either  Government,  State  or  National,  ever  con- 
templated that  conveyance  of  forty  acres  of  land  at  the  lower 
end  of  a  stream  that  flows  for  miles  through  the  public  lands 
should  put  an  end  to  subsequent  appropriation  of  the  waters 
of  the  stream  upon  the  public  lands  above,  and  entitle  the 
grantee  of  the  forty  acres  to   the   undiminished  flow  ()\  the 
water  in  its  natural  channel  from  its  source  to  its  mouth?     It 


318  RIGHTS    OF    APPROPRIATORS.  [§  203,  204. 

seems  to  me  entirely  clear  that  nothing  of  the  kind  was  ever 
contemplated." 

§  204.  Same. — Same. — Jones  vs.  Adams — In  the  case  of 
Jones  vs.  Adams  ^  the  decision  in  the  case  of  Vansickle  vs. 
Haines,  and  the  common  law  doctrine  therein  laid  down, 
which  has  been  followed  by  some  authorities  as  a  leading  case 
upon  the  subject,  was  expressly  overruled.  And  as  the  au- 
thorities upon  the  subject  are  collected  and  the  principles  are 
summed  up  in  a  verj"  able  manner,  we  will  quote  at  length 
from  the  decision  in  that  case.  Mr.  Justice  Hawlej^,  in  ren- 
dering the  opinion  of  the  Court,  said:  "In  Union  M.  &  M. 
Co.  vs.  Ferris  2  it  was  claimed  by  the  defendants  that  the  Act 
of  Congress  confirmed  their  rights  acquired  by  priority  of 
appropriation;^  but  the  Court  ignored  this  claim  and  endorsed 
the  doctrines  enunciated  by  the  Court  in  Vansickle  vs.  Haines. 
We  are  of  the  opinion  that  the  ninth  section  of  the  Act  of 
Congress  confirmed  to  the  owners  of  water  rights  on  the  pub- 
lic lands  of  the  United  States  the  same  rights  which  \\\Q.y  held 
under  the  local  customs,  laws  and  decisions  of  the  Courts 
prior  to  its  enactment;  that  the  Act  of  Congress  did  not  in- 
troduce, and  was  not  intended  to  introduce,  au}^  new  system, 
or  to  evince  any  new  or  different  policy  upon  the  part  of  the 
general  Government;  that  it  recognized,  sanctioned,  protected 
and  confirmed  the  system  already  established  hy  the  customs, 
laws  and  decisions  of  Courts,  ^.n^  provided  for  its  continuance. 

"We  had  occasion  in  Barnes  vs.  Sabron,  lo  Nev.  230,  to 
quote  with  approval  the  doctrines  announced  by  the  Supreme 
Court  of  the  United  States  in  Basey  vs.  Gallagher,  that  the 
Government,  by  its  silent  acquiescence,  had  assented  to  and 
encouraged  the  occupation  of  the  public  lands  for  mining  pur- 
poses; that  he  who  first  connected  his  labor  with  the  property 
opened  to  general  exploration,  in  natural  justice  acquired  a 
better  right  to  its  use  and  enjoyment  than  others  who  had  not 
given  such  labor;  that  the  miners  on  the  public  lands  and 
throughout  the  Pacific  States  and  Territories  by  their  customs, 
usages   and    regulations,   had    recognized   the    inherent   jus- 

1  19  Nev.  78.  -^Act  of   Congress  of  July  26th, 

22  Sawyer,  79.  t866. 


§204.]  RIGHTS    OF    APPROPRIATORS.  319 

tice  of  this  principle,  and  that  it  had  been  recognized  by  leg- 
islation, and  enforced  by  the  Courts  and  finally  approved  by 
the  Legislation  of  Congress  in  1866;  that  this  principle  was 
equally  applicable  to  the  use  of  water  on  the  public  lands  for 
the  purposes  of  irrigation;  and  we  declared  that  it  logically 
followed,  from  the  legal  principles  announced  in  that  case, 
that  the  first  appropriator  of  the  waters  of  a  stream  had  the 
right  to  insist  that  the  water  flowing  therein  should  'during 
the  irrigating  season  be  subject  to  his  reasonable  use  and 
enjoyment,  to  the  full  extent  of  his  original  appropriation 
and  beneficial  use.' 

"In  Basey  vs.  Gallagher^  the  Court,  after  quoting  the  ninth 
section  of  the  Act  of  Congress,  said:  'It  is  very  evident  that 
Congress  intended,  although  the  language  used  is  not  happy, 
to  recognize  as  valid  the  customary  lazv  with  respect  to  the  use 
of  water  which  had  grown  up  among  the  occupants  of  public 
lands  under  the  peculiar  necessities  of  their  condition;  and 
that  law  may  be  shown  by  evidence  of  the  local  customs,  or 
by  the  legislation  of  the  State  or  Territory  or  by  the  decisions 
of  the  Courts.  The  union  of  the  three  conditions  in  any 
particular  case  is  not  essential  to  the  perfection  of  the  right 
b}^  priority;  and  in  case  of  conflict  between  a  local  custom 
and  a  statutory  regulation,  the  latter,  as  of  superior  authority, 
must  necessarily  control.' 

"In  Jennison  vs.  Kirk,  -  counsel  for  the  plaintiff"  contended 
that  of  the  two  rights  mentioned  in  the  ninth  section  of  the 
Act  of  Congress  only  the  right  to  the  use  of  water  on  the  pub- 
lic lands  acquired  by  priority  of  possession  is  dependent  upon 
local  customs,  laws  and  decisions  of  the  Courts;  and  that  the 
right-of-way  over  such  lands  for  the  construction  of  such 
ditches  and  canals  is  conferred  absolutely  upon  those  who 
have  acquired  the  water  rights,  and  is  not  subject  in  its  en- 
joyment to  the  local  customs,  laws  and  decisions.  The  Court 
refused  to  sustain  this  position,  and  said:  '  The  object  of  the 
section  was  to  give  the  sanction  of  the  United  States,  the 
proprietor  of  lands,  to  possessory  rights,  which  had  previously 
rested  solely  upon  local   customs,  laws  and   decisions  of  the 

1  20  Wall.  670.  2  98  U.  vS.  460. 


320  RIGHTS    OF    APPROPRIATORS^,  [§  204. 

Courts,  and  to  prevent  such  rights  from  being  lost  on.  a  sale  of 
the  lands.  The  section  is  to  be  read  in  connection  with  other 
provisions  of  the  Act  of  which  it  is  a  part,  and  in  the  light  of 
matters  of  public  history  relating  to  the  mineral  lands  of  the 
United  States.' 

"After  stating  at  considerable  length  the  histor}^  of  the 
discovery  of  gold  in  California,  the  adoption  by  the  miners — 
in  their  love  of  order,  SA^stem  and  fair  dealing — of  rules  and 
regulations  for  the  government  of  their  property  rights;  the 
recognition  of  the  rights,  by  prior  appropriation,  to  the  water 
of  a  stream  conveyed  away  from  its  natural  channel  for  min- 
ing or  other  beneficial  purposes;  the  fact  that  the  doctrines 
of  the  common  law  respecting  the  rights  of  riparian  owners 
were  not  considered  as  applicable,  or  onl}-  in  a  very  limited 
degree,  to  tlie  condition  of  the  miners;  that  the  waters  of 
rivers  and  lakes  were  carried  great  distances  in  ditches  and 
flumes,  constructed  with  vast  labor  and  enormous  expenditure 
of  mone}^  along  the  sides  of  mountains  and  through  canyons 
and  ravines,  to  supply  communities  engaged  in  mining,  as 
well  as  for  agriculturist  and  for  ordinary  consumption,  and 
giving  the  views  of  the  author  of  the  Act  and  interpreting  its 
several  sections,  the  Court,  speaking  of  the  ninth  section, 
said:  '  In  other  words,  the  United  States  by  the  section  said 
that  whenever  rights  to  the  use  of  water  by  priority  of  pos- 
session had  become  vested,  and  were  recognized  by  the  local 
customs,  laws  and  decisions  of  the  Court,  the  owners  and 
possessors  should  be  protected  in  them;  and  that  the  right  of 
way  for  ditches  and  canals  incident  to  such  water  rights  being 
recognized  in  the  same  manner  should  be  acknowledged  and 
confirmed;  but  where  ditches  subsequently  constructed  injured 
by  their  construction  the  possession  of  others  on  the  public 
domain  the  owners  of  such  ditches  should  be  liable  for  the 
injuries  sustained.  Any  other  construction  would  be  incon- 
sistent with  the  general  purpose  of  the  Act,  which,  as  already 
stated,  was  to  give  the  sanction  of  the  Government  to  the  posses- 
sory rights  acquii  ed  under  the  local  cnstonis,  laics  and  decisions 
of  the  Courts.' 

"In  Broder  vs.  Natoma  Water  Co.,^  the  Court  said:     'It  is 
1  loi  U.    S.  276,   and  authorities  there  cited. 


§  204,  205.]       Rights  of  appropriators.  321 

the  established  doctrine  of  this  Court  that  rights  of  miners, 
who  had  taken  possession  of  mines  and  worked  and  developed 
them,  and  the  rights  of  persons  who  have  constructed  canals 
and  ditches  to  be  used  in  mining  operations  and  for  purposes 
of  agricultural  irrigation,  in  the  region  where  such  artificial 
use  of  the  waters  was  an  absolute  necessity,  are  rights  which 
the  Government  had  by  its  conduct  recognized  and  encour- 
aged, and  was  bound  to  protect  before  the  passage  of  the  Act  of 
1 866.  We  are  of  the  opinion  that  the  section  of  the  Act 
which  we  have  quoted  was  rather  a  voluntary  recognition  of  a 
pre-existing  right  of  possession  constituting  a  valid  claim  to  its 
contiynied  use  than  the  establishment  of  a  neiv  one.'^ 

' '  It  necessarily  follows  from  these  views  we  have  expressed 
and  from  the  doctrine  announced  in  the  authorities  we  have 
cited  that  the  Court  did  not  err  in  rendering  its  judgment  and 
decree  upon  the  findings  in  relation  to  prior  appropriations. 
The  case  of  Vansickle  vs.  Haines,  in  so  far  as  the  same  is  in 
conflict  with  the  views  herein  expressed,  is  hereby  over- 
ruled. 

"  The  judgment  of  the  District  Court  is  affirmed." 
(It  will  be  noticed  upon  examination  that  the  facts  in  the 
above  case  are  similar  to  the  facts  in  the  case  of  Vansickle  vs. 
Haines.) 

§  205.  Same.— Reno  Sineltiii!;,  Milling-  and  Reduction 
Works  vs.  Stevenson. — In  a  still  later  Nevada  case,  of  the 
Reno  S.,  M.  &  R.  Works  vs.  Stevenson,^  in  which  the  case  of 
Jones  vs.  Adams,  supra,  overruling  Vansickle  vs.  Haines, 
supra,  was  affirmed,  Mr.  Justice  Belknap,  in  rendering  the 
opinion  of  the  Court  and  after  discussing  the  United  States 
cases  above  and  quoting  the  statute  upon  the  subject  of  com- 
mon law,  said:  "  This  was  substantially  the  statute  when 
Vansickle  vs.  Haines  was  decided.  The  statute  is  silent  upon 
the  subject  of  applicability  of  the  common  law,  but  we  tliink 
the  term  '  common  law  of  Ivngland  '  was  employed  in  the 
sense  in  which  it  is  generally  understood  in  this  country,  and 

1  Citing  Coffin  vs.  Left  Hand  Ross,  J.,  in  I<ux  vs.  II;ii;jj;in,  69 
Ditch  Co.,  4  Colo.  443;  opinion  1)y       Cal.  255. 

220  Nev.  269. 


322  RIGHTS    OF    APPROPRIATORS.  [§  205, 

the  intention  of  the  legislature  was  to  adopt  only  so  much  of  it 
as  was  applicable  to  our  condition.     An  examination  of  the 
authorities  will  render  this  apparent. ' '     Then,  after  discussing 
at  some  length  the  authorities  upon  this  subject,  he  quoted 
from  the  opinion  of  Bronson,  J.,  in  Starr  vs.  Child  (20  Wend. 
149),  in  which  he  said:     "  Now,  I   think  no  doctrine   better 
settled  than  that  such  portions  of  the  law  of  England  as  are 
not  adapted  to  our  condition  form  no  part  of  the  law  of  this 
State.     This  exception  includes  not  only  such  laws  as  are  in- 
consistent with  the  spirit  of  our  institutions,  but  such  as  were 
framed  with  special  reference  to  the  physical  conditions  of  a 
country  differing  widely  from  our  own.     It  is  contrary  to  the 
spirit  of  the  common  law  itself  to  apply  a  rule  founded  on  a 
particular  reason  to  a  law  when  that  reason   utterly  fails — 
cessarde  ratione  legis,  cessat  ipsa    lex.     In    States    where  the 
common  law  has  not  been  adopted  by  legislative  enactment 
Courts  have  proceeded  upon  the  hypothesis  of  its  adoption, 
subject  always  to  its  applicabilit}^  to  the  locality."     Then, 
after   citing  several  authorities  upon  this  subject,  the  Court 
proceeds:     "  From  these  authorities  we  assume  that  the  ap- 
plicability of  the  comm-on  law  rule  to  the  physical  characteris- 
tics of  the  State  should  be  considered.     Its  inapplicability  to 
the  Pacific  States,  as  shown  in  Atchison  vs.   Peterson,^  ap- 
plies forcibly  to  the  State  of  Nevada.     Here  the  soil   is  arid 
and  unfit  for  cultivation  unless  irrigated  by  the  waters  of  run- 
ning streams.     The  general  surface  of  the  State  is  table  land, 
traversed  by  parallel  mountain  ranges.     The  great  plains  of 
the  State  afford  natural  advantages  for  conducting  water,  and 
lands  otherwise  waste  and   valueless  become  productive  by 
artificial    irrigation.     The  condition  of  the  country  and  the 
necessities  of  the  situation  impelled  settlers  upon  the  public 
lands  to  resort  to  the  diversion  and  the  use  of  waters.     This 
fact  of  itself  is  a  striking  illustration  and  conclusive  evidence 
of  the  inapplicability  of  the  common  law  rule.     The  system 
which  the  necessities  of  the  people  established  was  recognized 
and  confirmed  by  the  legislation  of  Congress — First ^  by  the 
Act  of  July  26th,  1866,  which  declares,  in  its  ninth  section, 

1  20  Wall.  507. 


§  205.]  RIGHTS   OF   APPROPRIATORS.  323 

'  that  whenever  by  priority  of  possession  rights  to  the  use  of 
water  for  mining,  agricultural,  manufacturing  or  other  pur- 
poses have  vested  and  accrued,  and  the  same  are  recognized 
and  acknowledged  by  the  local  customs,  laws  and  decisions  of 
courts,  the  possessors  and  owners  of  such  vested  rights  shall 
be  maintained  and  protected  in  the  same; '  *  *  *  and 
second,  by  the  desert  land  act,  which  encourages  the  appro- 
priation and  use  of  water  upon  such  of  the  public  lands  as 
will  not  without  irrigation  produce  an  agricultural  crop,  by 
authorizing  the  sale  of  a  greater  amount  of  such  land  than  the 
purchaser  could  otherwise  acquire,  upon  proof  of  his  having 
conducted  water  upon  it  for  the  purpose  of  irrigation.  This 
Act  applies  only  to  the  Pacific  Coast  States  and  Territories. 
(U.  S.  Stat.  1877,  377.)  The  legislation  of  the  State  also  has 
encouraged  the  diversion  of  water  by  an  Act  approved  March 
3,  1866,  the  general  object  of  which  is  expressed  in  its  title  as 
follows:  '  An  Act  to  allow  any  person  or  persons  to  divert 
the  waters  of  any  river  or  stream  and  run  the  same  through 
any  ditch  or  flume,  and  to  provide  for  the  right-of-way  through 
the  lands  of  others.'  (Gen.  Stat.  362-365.)  And  the  ad- 
judication of  the  Courts,  with  the  exception  mentioned,  have 
sustained  the  doctrine  of  appropriation  upon  which  the  people 
acted.  That  the  doctrine  should  be  upheld  as  well  after  the 
issuance  of  the  patent  of  the  Government,  as  before,  we  quote 
the  views  of  Mr.  Justice  Ross,  in  dissenting  opinion  of  I^ux 
vs.  Haggin:^  <<  *  *  *  The  case  of  Coffin  vs.  Left  Hand 
Ditch  Company,  6  Colo.  443,  recognizes  appropriation  as  the 
law  of  the  State  of  Colorado.  Some  of  the  principles  an- 
nounced in  that  case  are  applicable  here.  '  It  is  contended  by 
counsel  for  appellants,'  says  the  Court,  '  that  the  common  law 
principles  of  riparian  proprietorship  prevailed  in  Colorado 
until  1876,  and  that  the  doctrine  of  priority  of  right  to  water 
by  priority  of  appropriation  thereof  was  first  recognized  and 
adopted  in  the  Constitution.  But  we  think  the  latter  doctrine 
has  existed  from  the  date  of  the  earliest  appropriations  of  water 
within  the  boundaries  of  the  State.  The  climate  is  dry,  and 
the    soil,  when  moistened  by  the  usual  rainfall,  is  arid  and 

1 69  Cal.  450. 


324  RIGHTS    OF    APPROPRIATORS.         [§  205.  206. 

unproductive.  Except  in  a  few  favored  sections  artificial 
irrigation  for  agriculture  is  an  absolute  necessity.  Water  in 
the  various  streams  thus  acquires  a  value  unknown  in  moister 
climates.  Instead  of  being  a  mere  incident  to  the  soil  it 
arises  when  appropriated  to  the  dignity'  of  a  distinct  usufruc- 
tuary estate  or  right  of  property.  It  has  always  been  the 
policy  of  the  National,  as  well  as  the  Territorial  and  State 
governments,  to  encourage  the  diversion  and  use  of  water  in 
this  country  for  agriculture;  and  vast  expenditures  of  time 
and  money  have  been  made  in  reclaiming  and  fertilizing  by 
irrigation  portions  of  our  unproductive  territory.  *  *  * 
The  right  to  water  in  this  country  by  priority  of  appropria- 
tion thereof  we  think  is,  and  has  always  been,  the  duty  of 
the  National  and  State  governments  to  protect.  The  right 
itself  and  the  obligation  to  protect  it  existed  prior  to  legisla- 
tion on  the  subject  of  irrigation.  It  is  entitled  to  protection 
as  well  after  a  patent  to  a  third  party  of  the  land  over  which 
the  natural  stream  flows  as  when  such  land  is  a  part  of  the 
public  domain,  and  it  is  immaterial  whether  or  not  it  be  men- 
tioned in  the  patent  and  expressly  excluded  from  the  grant.' 
Our  conclusion  is  that  the  common  law  doctrine  of  riparian 
rights  is  unsuited  to  the  condition  of  our  State,  and  that  this 
case  should  have  been  determined  by  the  application  of  the 
principles  of  prior  appropriation." 

§  206.  Same. — Conclusions. — From  these  last  cited  author- 
ities it  follows  that  the  doctrine  of  priority  of  appropriation 
has  existed  from  the  date  of  the  earliest  appropriations  of 
water  within  the  boundaries  of  the  arid  region  as  a  valid 
right,  not  only  against  those  claiming  the  water  of  a  stream 
by  a  possessory  right,  but  also  those  who  claim  the  water  of 
a  stream  by  virtue  of  having  obtained  a  patent  to  the  land 
adjoining  the  stream  prior  to  the  Act  of  July  26,  1866,  where 
the  waters  had  been  appropriated  before  the  inception  of  the 
patentee's  title,  and  that  That  Act  of  Congress  simpl5^put  into 
statutory  language  the  right  to  continue  after  its  passage  in 
the  possession  and  ownership  of  all  vested  rights  to  waters 
acquired  prior  to  the  passage  which  were  recognized  by  the 
local  customs,  laws  and  decisions  of  the  Courts. 


§  206,  207.]  RIGHTS    OF    APPROPHIATORP.  325 

B}'  the  acquiescence  and  legislation  of  both  the  State  Gov- 
ernments of  the  arid  west  and  the  National  Government  the 
waters  on  the  public  lands  were  dedicated  from  the  earliest 
period  to  the  use  of  the  appropriate rs,  provided  that  their 
rights  were  prior  to  the  rights  of  riparian  owners'  title,  and 
also  that  the  water  appropriated  was  applied  to  some  benefi- 
cial use  or  purpose.  These  authorities  also  declare  the  law 
to  be  that  controversies  regarding  water  rights  between  the 
appropriators  of  the  water  of  a  certain  stream,  and  those  who 
own  the  banks  of  the  same  stream,  in  those  States  which  rec- 
ognize the  common  law  of  riparian  rights,  are  to  be  settled 
upon  the  basis  of  priority — he  who  is  first  in  time  has  the 
superior  right. 

§  207.  Tlie  Rule  Subsequent  to  the  Act  of  ISiiG.— To  those 
persons  who  acquired  a  title  to  their  lands  subsequent  to  the 
26th  of  July,  1866,  the  same  principle  of  priority  is  presented. 
But  over  the  title  to  these  lands  the  Courts  have  not  had  so 
much  controversy.  As  we  have  seen,  the  United  States  had 
a  perfect  title  to  its  public  domain  and  to  the  waters  flowing 
over  the  same;  also  that  the  Government,  through  Congress, 
has  the  sole  power  to  dispose  of  all  or  any  part  of  its  lands  to 
any  person  or  in  any  manner  that  it  may  deem  best.  In  some 
cases  the  Government  has  seen  fit  to  dispose  of  its  lands  by 
means  of  a  patent  or  Government  deed.  In  other  cases  simply 
an  Act  of  Congress  is  deemed  sufficient.  The  latter  method 
is  as  effective  and  vests  as  good  a  title  in  the  grantee  as  the 
former  method  vests  in  the  patentee.^  Again,  the  Govern- 
ment may  dispose  of  the  land  with  all  its  incidents  to  its 
patentee,  or  may  dispose  of  the  .soil  to  one  person  and  the  in- 
cidents connected  with  the  soil  to  another. ^     In  other  words 


1  A  grant  of  lands  "may  be  made  Strother  vs.    I^ucas,    12    Pet.   410, 

by  law  as  well  as  by  patent  issued  454;  Courtright  vs.  C.  R.  &  M.  Co., 

pursuant   to   law,     *      *      *     and  35  Iowa,  386. 

such  grant   vests   an  indefeasible  2  Ante  Chapter  V.,  vSections  134, 

and  irrevocable  title."  147;  Basey  vs.  Ciallagher,  20  Wall. 

Fletcher  vs.  Peck,  6  Cranch.  87;  670;  Union  M.  &  M.  Co.  vs.  I'crris. 

Territt   vs.  Taylor,  9   Cranch.  43;  2  Sawyer,  176. 
Wilkinson  vs.    Leland,  2  Pet.  627; 


326  RIGHTS    OF    APPROPRIATORS.  [§  207' 

it  can  dispose  of  the  soil  to  its  patentees,  and  the  waters  run- 
ning over  the  same  to  those  who  have  appropriated  them  to  some 
beneficial  use  or  purpose.  And  Congress  by  the  Act  of  1866 
saw  fit  to  do  that  very  thing,  in  case  an  actual  appropriation 
of  water  had  been  made  prior  to  the  vested  rights  of  the 
patentee.  The  ninth  section  of  that  statute  acts  in  a  double 
capacity;  first,  it  is  in  the  nature  of  a  grant  to  all  those  who 
were  at  that  time  appropriating  the  waters  of  the  streams 
flowing  over  the  public  domain,  of  the  waters  so  appropriated; 
and  second,  it  acts  as  a  reservation  or  limitation  to  all  lands 
disposed  of  by  the  Government  subsequent  to  that  Act,  pro- 
vided that  an  actual  appropriation  of  the  waters  of  those 
lands  had  been  made  prior  to  the  date  the  patentee's  rights 
first  vested.  It  has  the  same  effect  in  the  latter  case  as  though 
that  section  of  the  statute  was  incorporated  in  each  patent 
issued  subsequent  to  the  Act,  and  operates  as  an  exception 
out  of  the  estate  granted  to  the  patentee.  Hence  it  follows 
that  whoever  acquires  title  to  land  from  the  United  States 
after  the  26th  day  of  July,  1866,  and  prior  to  this  acquisition 
of  title  the  whole  or  some  part  of  the  water  of  a  natural 
water  course  running  through  such  land  has  been  appropri- 
ated for  some  useful  purpose,  the  patentee  takes  the  land  sub- 
ject to  the  rights  acquired  by  such  prior  appropriator.^      It 

iBrodervs.  Natoma  Water  Co.,  1866,  or  the  Amendatory  Act  of 
loi  U.  S.  274;  50  Cal.  621;  Atchison  1870)  gave  the  appropriator  the 
vs.  Peterson,  20  Wall.  507;  Basey  right  to  the  water  appropriated, 
vs.  Gallagher,  20  Wall.  660;  as  against  a  grantee  of  riparian 
Forbes  vs.  Gracey,  94  U.  S.  762;  lands  under  a  grant  made  or 
Jennison  vs.  Kirk,  98  U.  S.  453;  issued  prior  to  the  Act  of  1866,  ex- 
Union  M.  &  M.  Co.  vs.  Ferris,  2  cept  in  a  case  where  the  water  so 
Sawyer,  176;  Union  M.  &  M.  Co.  subsequently  appropriated  was 
vs.  Dangberg,  2  Sawyer,  451.  reserved    by    the   terms   of    such 

Ivux  vs.  Haggin,  69  Cal.  255;  10  grant." 

Pac.  Rep.  674,  where  it  was  stated  Sparrow  vs.  Strong,  4  Wall.  97, 

that:  "It  has  never  been  held  by  777;  Barnes   vs.    Sabron,    10  Nev. 

the  Supreme  Court  of  the  United  216;  Lytle  Creek  vs.    Perdew,   65 

States  or  by  the  Supreme  Court  of  Cal.  447;  2  Pac.  Rep.  732;  Judkins 

this    State  that  an   appropriation       vs.  Elliott, Cal. ;   12  Pac. 

of  the  water  on  the  public  lands  of  Rep.  116;  Kales  vs.  Campbell,   13 

the  United  States  (made  after  the  Or.  596;  11  Pac.  Rep.  301;  Lehi  Ir. 

Act     of      Congress    of    July     26,  Co.  vs.  Moyle,  4  Utah,  327:  9  Pac. 


§  207,  208.]         RIGHTS   OF    APPROPRIATORS.  327 

is  not  necessary;  in  order  that  a  right  of  appropriation  of 
waters  be  entitled  to  protection  under  the  ninth  section  of  the 
Act  of  1 866,  that  there  should  be  a  union  of  the  three  condi- 
tions therein  mentioned;  that  is,  that  said  right  should  be 
recognized  by  the  local  customs,  laws  and  decisions  of  the 
Courts.  All  these  conditions  mentioned  therein  may  not  be 
present  in  each  particular  case.^ 

§  208.  The  Doctrine  of  Relation  as  Applied  to  Patentees. 

— The  controversies  between  appropriators  and  patentees  of 
the  Government,  where  rights  to  the  land  had  vested  prior  to 
the  date  of  the  Act  of  i866,  are  as  we  have  seen  based  upon 
priority  of  their  respective  claims;  also,  after  the  passage  of 
that  Act  priorit}^  is  made  the  basis  in  all  controversies  be- 
tween those  who  claim  the  title  to  the  waters  of  natural 
streams  b}'  appropriation  merel)-,  and  those  who  claim  them 
as  riparian  owners  by  virtue  of  a  Government  patent  to  the  soil 
adjoining  the  stream  granted  after  that  law  was  passed. 
And  again,  between  these  parties,  as  between  those  who  have 
simply  a  possessory  right  to  the  waters,  he  who  has  the  prior 
has  the  superior  right.  Therefore  it  becomes  necessary  to 
ascertain  the  exact  time  as  to  when  the  riparian  rights  of  a 
patentee  whose  lands  adjoin  a  certain  stream  vests,  so  as  to 
cut  off  all  subsequent  attempts  to  claim  the  water  by  appro- 
priation from  the  same  stream.  As  we  have  seen  in  a  former 
chapter^  there  are  various  methods  provided  by  Congress  by 
wliich  a  title  to  public  lands  may  be  acquired  by  individuals. 
That  is  to  say,  by  purchase,  military  warrants,  pre-emption, 
homestead,  desert  entry  and  the  like.  And,  as  in  the  case  of 
appropriation,  there  are  various  preliminary  steps  required  by 
law  to  be  taken  by  the  part)'  entering  the  land  by  any  of  these 
methods.  He  must  enter  upon  the  land  and  reside  there  for 
a  certain  period  of  time;  he  must  file  his  declaration,  pay  the 
purchase  price,  if  any  is  required,  and  do   such  similar  acts 

Rep.  867;  Larimer  Co..  vs.  People,  J   in  IJroder  vs.  Natoma  Water  Co. 

8  Colo.  614;  9  Pac.  Rep.  794.  loi  U.  S.  276;  Sparrow  vs.  Strong, 

IBasey   vs.  Gallaf^lier,    20  Wall.  3  Wall.  97,  777. 

670;  Barnes    vs.    Sabroii,    to  Nev.  -Clinpter  \'  .Sections  1.12-144. 
217.     See  also  remarks  of  Miller, 


328  RIGHTS    OF    APPROPRIATORS.  [§  208,  209 

as  the  law  may  in  each  case  require.  After  he  has  fulfilled 
all  of  the  requirements  of  the  law  the  claimant  receives  a  cer- 
tificate from  the  receiver  of  the  local  land  office  to  that  effect 
and  is  entitled  to  a  patent  from  the  Government,  which 
usually  after  a  lapse  of  considerable  time  is  executed  b}'  the 
proper  officers  in  Washington  for  and  in  behalf  of  the  United 
States  to  the  patentee,  and  forwarded  to  him  through  the 
local  land  office.  Now  the  authorities  are  unanimous 
upon  this  point,  that  until  the  patent  is  issued,  whatever 
suitable  title  the  claimant  ma}-  have,  the  legal  title  to  the 
land  still  rem^ains  in  the  Government  unless  the  land  be 
granted  by  a  Congressional  grant,  in  which  case  it  requires 
no  patent.^  The  legal  title  remains  in  the  United  States  until 
the  patent  is  issued,  but  before  it  is  issued  and  after  the  per- 
fection of  claimant's  right,  the  United  States  holds  the  land 
in  trust  for  such  claimant,  and  stands  in  the  same  position  as 
does  any  private  part}^  who  is  under  contract  to  convey.^ 
Hence  it  follows  there  can  be  no  question  but  that  upon  the 
issuance  of  the  patent  all  legal  and  equitable  title  in  and  to  the 
land  vests  in  the  patentee;  ^  and  all  appropriations  of  the  water 
of  a  stream  running  over  or  adjoining  the  lands  of  a  patentee, 
subsequent  to  the  date  of  a  patent,  must  be  made  subject  and 
subordinate  to  his  riparian  rights  in  those  States  which  rec- 
ognize those  rights.^ 

§  2()S).  Same. — Contiuued.— The  riparian  rights  of  a  pat- 
entee being  fixed  beyond  all  question  of  doubt,  at  least  at  the 
time  of  the  issuance  of  his  patent,  the  question  now  presents 

1  Wilcox     vs.      McConnell,      13  3  Ibid.     Morrow     vs.    Whitney, 

Peters,  49S;  Morrow  vs.  Whitney,  95  U.  S.  551;  Whitney  vs.  Morrow, 

95  U.  S.  551;  Cornelius  vs.  Kessel,  112   U.    S.   693;    McGarrahan     vs. 

58  Wis.  237,  affirmed  in  128  U.  S.  Mining  Co.,  96    U.  S.   316;  Irvine 

456.  vs.    Irvine,   9   Wall.    617;    United 

2Bronson  vs.  Kukuk,  3  Dill.490;  States     vs.    Stone,     2    Wall.   225; 

United   States    vs.    Freyberg,    32  Brown   vs.    Huger,    21   How.  305; 

Fed.  Rep.  195;    Astrom   vs.    Ham-  Warren  vs.  Van   Brunt,    19   Wall, 

mond,  4  McLean,  107;  Lindsey  vs.  647;  Bryan   vs.   Forsyth,    10  How. 

Hawes,    2    Black.    554;    Stark   vs.  334;    Cowell   vs.  Colorado    Spgs., 

Starr,  6  Wall.  402;  Carroll  vs.  Saf-  100  U.  S.  55, 

ford,  3  How.  441;  Witherspoon  vs.  4  Lux  vs.  Haggin,  69  Cal.  255;  10 

Duncan,  71  U.  S.  210.  Pac.  Rep.  674. 


§209]  RIGHTS   OF    APl'ROPRIATOKS.  329 

itself,  is  there  any  point  in  the  stage  of  the  proceedings  when 
the  law  requires  the  claimant  of  the  land  to  take  action, prior  and 
preliminary  to  the  securingof  his  patent,  where  the  equitable 
title  to  the  land  and  its  incidents  vests  in  the  claimant  to  such 
a  degree  that  his  claim  to  the  riparian  rights  of  the  land  cuts 
off  all  subsequent  claims  to  the  waters  of  the  stream-  by  its  ap- 
propriation ?     We   are   of  the   opinion  that  there  is  a  time 
when  the  title  so  vests  in  the  riparian  owner  in  those  States 
and    Territories    that    recognize   his   common    law  riparian 
rights.     It  has  been  shown  in  the  previous  section  that  the 
legal  title  remains  in  the  United  States  until  the  patent  is  is- 
sued, but  before  it  is  issued  and  after  the  perfection  of  claim- 
ant's right  the  United  States  holds  the  land  in  trust  for  the 
claimant.     That  leads  us  to  the  question  as  to  wdiat  consti- 
tutes the   perfection  of  claimant's  rights  ?     We  will  answer 
this  by  saying  the  claimant's  rights  to  the  land  and  its  inci- 
dents become  vested  and  perfect  in  him  when  he  has  duly 
performed  all  the  statutory  requirements  which  entitle  him  to 
a  patent  from  the  Government.     If,   for  example,   his  entry 
was  a  pre-emption  he  must  have  settled  upon  the  land,  filed 
his  application,  resided  upon  the   land  during  the  statutory 
period  and  finally  paid  the  statutory  price  before  he  is  en- 
titled to  a  patent.     However,  when  he  has  duly  performed  all 
the   statutory  requirements,    including  the  payment  for  the 
land,  at  that  moment,  and  not  until  then,  is  he  entitled  to  a 
patent.     And  again,  if  he  made  a  homestead  entry  upon  the 
land  he  must  have  filed  his  application  and  resided  upon  the 
land  continuously  during   the  time  required  by  statute  and 
complied  with  all  the  other  requirements  of  the  law  necessary 
in  his  case  before  he  is  entitled  to  a  patent.     The  claimant 
under  each  class  of  entries  must  do  all  that  the  statute  requires, 
and  must   "prove   up"   his  claim,  pay  for  the  land,  if  re- 
quired, and  then,  and  not  until  then,  is  he  entitled  to  a  cer- 
tificate of  purchase  and  a  patent.     But  from  the  time  that  he 
files  his  application  for  the  land — or  from  the  very  inception 
of  his  title — unless  he  allows  his  right  to  lapse  by  some  non- 
compliance of  the  law,  he  has  certain  equitable  rights  in  and 
to  the  land  which  the  Government  is  bonnd  to  respect.      Aiul 
Congress  and  the  Courts,  in  pursuance  (;f  the  constant  ])()licy 


330  RIGHTS    OF    APPROPRIATORS.  [§  209,  210 

of  the  Government,  are  bound  to  protect  the  rights  of  those 
who  in  good  faith  have  settled  upon  or  improved  any  portion 
of  the  public  land  as  being  meritorious  and  entitled  to  protec- 
tion, although  those  rights  were  inchoate  and  imperfect.-^ 


§210.  Same — Coiitiimed.  —  If  for  example,  in  i860,  A 
should  make  a  homestead  entry  by  filing  his  application  in 
the  lyand  Office  for  a  tract  of  land  over  and  adjoining  which 
a  stream  of  water  ran,  and  on  February  the  first,  1865,  after 
residing  upon  the  land  for  the  statutory  period,  should  make  his 
final  proof  to  his  claim,  and  in  1867  he  should  receive  his 
patent,  at  what  period  of  the  transaction  would  his  equitable 
rights  vest  as  a  riparian  owner  so  that  all  appropriations  of 
the  water  of  the  stream  after  that  period  would  be  subject 
and  subsequent  to  his  riparian  rights  in  the  same?  Do  his 
riparian  rights  to  have  the  stream  flow  in  its  natural  channel, 
as  it  was  wont,  vest  with  his  entry  on  the  land,  or  is  there 
some  stage  of  the  proceedings  that  can  be  subsequently  fixed 
upon  when  they  will  vest?  But  again,  let  us  suppose  that  B 
had  first  taken  steps  to  appropriate  all  or  a  portion  of  the 
waters  of  the  stream  in  1864 — a  year  before  A  had  made  his 
final  proof — and  had  completed  his  appropriation  in  1868.  Can 
B  hold  his  appropriation  to  the  water  as  against  A,  on  the 
ground  that  A's  title  had  not  vested  at  the  time  his  appropri- 
ation was  commenced  to  such  a  degree  that  he  was  entitled  to  a 
certificate  or  patent  to  the  land,  from  the  fact  that  there  were 
other  statutory  requirements  necessary  for  A  to  perform?  As 
we  have  seen,  these  rights  to  water  would  relate  back  to  the 
time  the  first  step  was  taken  to  appropriate  it,  in  1864, 
provided,  of  course,  he  had  exercised  all  due  and  reasonable 


iBroder  vs.  Natonia   Water  Co.,  U.  S.  618;  Kansas  Pac.  Ry.  Co.  vs. 

loi  U.  S.  274;  Atchison   vs.  Peter-  Denmeyer,    113    U.    S.    629;     St. 

son,  2oWall.  507;  Basey  vs.Gallagh-  Joseph,  etc.,  Ry.  Co.  vs.  Baldwin, 

er,    20    Wall.    670;      Forbes      vs.  103  U.   S.  426;   Burnham  vs.  Star- 

Gracey,  94  U.  vS.   762;  Wolcott  vs.  key,  41  Kan.  604;  Burlington,  etc., 

Des  Moines  Co.,  5  Wall.  681;  Wil-  Ry.  Co.  vs.  Johnson,  38  Kan.  143; 

liams  vs.  Baker,  17  Wall.  144;  Wi-  Lamb  vs.  Davenport,  18  Wall.  313; 

tiona,  etc.,  Ry.  Co.  vs.  Barney,  113  Rector  vs.  Gibbon,  loi  U.   S.  276. 


§2L0j  RIGHTS    OF    AlM'UOrillATORS.  33L 

diligence  in  constr  ucting  his  works  to  complete  his  appropri- 
ation and  in  applying  the  water  to  some  beneficial  use.^ 

Is  there  any  reason  in  law  or  in  equity  why  A's  rights  to 
the  water,  as  riparian  owner,  should  not  also  relate  back  to  the 
date  of  his  entry  in  i860,  in  those  States  where  his  riparian 
rights  are  recognized  and  protected?  "We  think  not.  His 
location  upon  the  land  and  B's  appropriation  of  the  water  are 
both  authorized  b^'  general  statutes  of  Congress,  which  were 
enacted  for  one  purpose — to  encourage  actual  bona  fide  set- 
tlers to  locate  upon  the  public  lands  by  providing  means,  in 
the  first  place,  for  settlers  to  acquire  the  private  ownership 
of  certain  tracts;  and  in  the  second  place,  for  vsuch  settlers  to 
be  able  to  make  their  lands  fertile  and  productive  by  giving 
them  the  right  to  divert  and  use  the  waters  of  streams  upon 
them  for  irrigation.  If  the  locator  of  the  land  strictly  com- 
plies with  the  law,  and  finally  makes  his  proof,  the  various 
steps  required  by  law  to  be  taken  are  but  the  integral  parts 
of  one  continuous  transaction ;  as  much  so  in  fact  as  the  various 
steps  required  by  law  to  be  taken  by  the  appropriator  are  parts 
of  another  continuous  transaction.  We  are  aware  of  the  fact 
that  some  very  high  authorities  hold,  and  others  seem  to  hold, 
that  A's  title  as  against  appropriators  of  the  water  of  the 
stream  would  only  relate  back  to  February  first,  1865,  the 
date  of  his  final  proof  entitling  him  to  a  certificate  or  patent. 
Yet,  as  against  other  persons  claiming  the  soil  itself,  the 
authorities  are  unanimous  in  holding  that  A's  rights  in  and 
to  the  same,  if  he  has  strictly  complied  with  all  the  statutory 
requirements  and  not  allowed  his  rights  to  lapse  by  failing  to 
comply  with  the  law,  will  relate  back  to  the  date  of  the  act  of 
location  or  the  inceptive  step  taken  to  secure  his  title.  Is  it 
not  inconsistent  for  some  of  the  Courts  to  hold  that  A's  right 
to  the  soil  relates  back  to  his  very  inception  of  title,  while  his 
rights  to  the  water,  which  are  naturally  incident  thereto, 
sTiould  only  relate  back  to  the  time  when  he  made  his  final 
proof  and  completed  all  the  statutory  requirements?    In  other 

1  Ante  sections  168,  169,  184  and  Maoris   vs.    Hicknell,    7    Cal.    261; 

authorities  citeJ.     Osgood  vs.  Kl  Wooliiiaii   vs.  Carringer,  i    Mont. 

Dorado  \V.  Co.,  56  Cal.  571;  Kelly  535;  Atchison  vs.  Peterson,!  Mont, 

vs.  Natonia  Water  Co.,  6  Cal.  i(;5;  561. 


332  IIKIHTS    OF    APPROl'RIATORS.  [§  210 

words,  suppose  that  A  had  located  upon  the  land,  and  had 
filed  his  application  for  the  same  in  i860 — perhaps  upon  the 
very  account  of  the  added  value  which  the  stream  would  impart 
to  his  land  if  it  were  permitted  to  flow  undisturbed  in  its 
natural  course — and  had  lived  upon  the  land  continuously, 
and  strictly  complied  with  all  the  statutory  requirements 
until  1865,  when  he  was  permitted  to  make  his  final  proof, 
which  he  then  did,  and  received  his  certificate  for  a  patent. 
And  in  1864,  a  few  months  before  A  made  his  final  proof, 
but  four  j^ears  after  the  first  of  his  proceedings  to  locate  upon 
the  land,  B,  without  owning  or  la3-ing  claim  to  any  land 
adjoining  the  stream,  had  filed  his  preliminary  notice  of 
appropriation,  and  had  diverted  all  or  nearly  all  the  waters 
from  the  stream,  to  the  great  injur}'  of  A's  rights  as  riparian 
owner.  Under  these  circumstances,  is  it  consistent  for  the 
Courts  to  hold  that  B  had  acquired  a  superior  title  to  those 
waters  to  that  of  A  ?  Is  it  equitable,  for  Courts  in  juris- 
dictions where  the  common  law  rights  of  riparian  owners 
in  and  to  the  waters  of  the  stream  are  recognized  and  pro- 
tected to  hold  that  B  can  come  in  at  that  late  date  and 
deprive  A  of  all  his  riparian  rights  in  and  to  the  waters  of  a 
stream,  simpl}-  upon  the  ground  that  his  right  in  and  to  this 
land  and  the  incidents  thereto  had  not  vested  sufficiently  to 
enable  him  to  protect  himself  from  these  appropriations  of  the 
water?     Yet  this  is  exactly  what  some  Courts  have  done.^ 

It  is  well  settled  and  recognized  by  all  the  Courts  that  B's 
rights  as  appropriator  relate  back  to  the  da}'  of  his  first  step 
to  appropriate  the  water.  Is  it  not  consistent  with  law  and 
equity  to  hold  that  the  riparian  rights  of  A  also  relate  back 
to  the  date  of  his  entry  upon  the  land — the  very  inception  of 
his  title?  Then,  in  that  case,  the  principle  of  priority,  which 
is  the  foundation  of  all  those  who  claim  a  title  to  those  lands 
and  waters  which  were  once  a  part  of  our  public  domain, 
would  remain  intact,  and  A's  riparian  rights  in  and  to  the 
waters  of  the  stream,  if  such  rights  are  to  be  upheld  at  all  in 
the  arid  region,  being  first  in  time  would  be  superior  and 
paramount  to  those  rights  of  B  under  his  appropriation. 

1  See  Farley  vs.   vSpriug   Valley  M.  &  Ir.  Co.,  53  Cal.  142. 


§211]  RIGHTS    OF    AIM'ROPIMATORS.  333 

§  211.  Professor  Poiiieroy  Tpon  Tliis  Subject.— Professor 

Pomeroy  in  his  notes  to  the  West  Coast  Reporter/  in  a  very 
able  discussion  of  this  important  subject,  says:  "  It  having 
been  shown  that  the  rights  of  a  patentee  from  the  United 
States,  as  a  prior  purchaser  or  owner,  reLate  back  at  least  to 
the  time  when  he  has  duly  performed  all  the  acts,  including 
payment,  which  entitle  him  to  a  patent,  the  question  still 
remains  whether  in  fact  his  rights  do  not  relate  back  to  the 
date  of  his  first  or  initiative  step  in  the  course  of  proceedings 
prescribed  by  Congress— as  in  the  case  of  a  pre-emptor  to  the 
filing  of  his  declaratory  statement. 

' '  This  question  arises  in  the  construction  and  application  of 
general  statutes  of  Congress,  which  were  intended  to  encour- 
age actual  settlers  and  occupants  of  the  public  lands  by  pro- 
viding a  means  for  such  actual  settlers  to  acquire  the  private 
ownership  of  tracts  of  land,  and  for  such  actual  occupants  to 
acquire  the  right  to  divert  and  use  thew^ater  of  streams.  The 
same  policy  plainly  underlies  the  whole  system  of  legislation. 
When  any  conflict  arises  between  parties  seeking  to  avail 
themselves  of  these  different  statutes— between  parties  seek- 
ing to  acquire  tracts  of  land  under  one  set  of  statutes  and 
parties  seeking  to  acquire  water-rights  under  another— it  would 
seem  to  be  just  and  reasonable  that  the  same  principle  or 
method  of  construction  and  interpretation  should  be  extended 
to  all  these  statutes  in  determining  the  rights  of  such  conflicting 
claimants.  In  respect  to  the  appropriator  of  water  on  the  pub- 
lic lands,  when  he  has  duly  posted  and  given  the  notices  of  his 
appropriation,  and  has  followed  up  this  initiative  by  proceeding 
to  construct  his  ditches,  dams  and  other  works  with  reasonable 
diligence,  and  without  unreasonable  delay,  his  right  of  appro- 
priation when  his  works  are  thus  completed  relates  back  to 
the  date  of  his  first  or  preliminary  act.^ 

"This  rule  seems  to  be  fully  settled.  In  cases  of  conflict 
as  to  priority  of  right  between  such  appropriator  of  water  and 
a  patentee  of  land  from  the  United  States  it  would  seem  to  be 
just  and  reasonable  that  the  same  rule  of  interpretation  should 

IVol.    I,  pp.  530,  643;  Pomeroy  2 Citing    OsKooil    vs.    IvUloiado, 

Riparian  Rights,  38,  39.  etc.,  Co.;  56  Cal.  5/I. 


334  RIGHTS    OF    APPROPRIATORS.  [§  211. 

be  extended  to  the  "other  similar  legislation  of  Congress  by 
which  private  persons  are  authorized  to  acquire  title  to  por- 
tions of  the  public  domain  as  pre-emptors,  homestead  occu- 
pants, and  the  like.  Congress  has  given  no  intimation  of  a 
policy  more  favorable  to  the  use  of  water  on  the  public  domain 
than  to  the  use  of  the  public  lands  for  all  other  beneficial  pur- 
poses. In  the  absence  of  decisions  it  would  naturally  be  sup- 
posed that  the  same  rule  would  be  applied  to  all  persons  who 
acquire  the  right  under  this  system  of  legislation,  in  determin- 
ing any  conflict  which  may  arise  between  them."  After  criti- 
cally examining  the  cases  cited  in  the  decision  of  Farley  vs. 
Spring  Valle}^  M.  &  Ir.  Co.,Mie  concludes  the  discussion  in 
the  following  language:  "Those  cases  deal  with  the  interest 
of  a  pre-emptor  before  he  obtains  a  patent,  and  before  he  has 
paid  the  price,  not  with  his  interest  by  relation  after  the  patent 
is  delivered.  Even  that  inchoate  interest  is  not  a  mere  nullit}'. 
While  it  is  not  in  its  imperfect  condition  a  perfect  and  vested 
right  to  the  land  as  against  the  United  States,  the  Supreme 
Court  pronounces  it  to  be  an  existing  right  which  the  Court 
will  protect  against  third  persons  who  have  no  superior  or 
equal  claims.  When  are  the  claims  of  third  persons,  derived 
from  other  portions  of  the  general  system  of  legislation  con- 
cerning the  acquisition  of  private  ownership  in  the  public 
lands,  superior  or  equal  to  the  inchoate  right  of  the  pre-emp- 
tor ?  It  seems  to  me  that  this  question  is  carefullj^  distin. 
guished  by  the  decisions  above  quoted,  and  excepted  from 
their  operation;  that  those  decisions  are  confined  to  a  special 
Act  of  Congress  directly  withdraiving  specific  portions  of  the 
public  lands  from  the  operation  of  such  general  legislation  as 
the  pre-emption  laws,  and  do  not  touch  upon  the  effect  of  the 
general  statutes  dealing  with  the  public  lands  and  prescribing 
the  modes  by  which  private  titles  or  interests  therein  may  be 
acquired."  It  is  quite  evident  from  the  last  that  Professor 
Pomeroy  was  undecided  in  his  own  mind  as  to  just  what  was 
the  law  upon  the  subject,  fearing  to  adopt  the  decision  in 
Farley  vs.  Spring  Valley  M.  &  Ir.  Co.  as  the  settled  law  and 
not  citing  any  other  authorit}^  that  sustained  a  different  prin- 
ciple.    As  a  matter  of  fact  the  law  upon  the  point  at  the  time 

I58  Cal.  142. 


§211,212]  RIGHTS    OF    APPROPRIATOKS.  335 

he  wrote  his  discussion  was  iu  a  very  unsettled  condition. 
Decisions  upon  the  question  were  few,  and  evidently  not  at  all 
satisfactory  to  the  writer. 

§  212.  Same. —  Authorities  on  Subject  Discussed. — Pro- 
fessor Pomeroy  in  his  discussion  clearly  indicates  that  in  his 
opinion  the  conclusions  arrived  at  by  the  Court,  and  which 
finally  led  to  the  decision  in  the  case  of  Farley  vs.  Spring 
Valley  M.  &  Ir.  Co.,^  are  contrary  to  the  decisions  of  the 
Court  prior  to  that  time,  and  contrary  to  law  and  equity  as 
between  those  who  claim  the  waters  of  a  stream  upon  the  pub- 
lic domain  by  virtue  of  their  riparian  ownership  and  those 
who  claim  the  waters  of  the  same  stream  by  virtue  of  its  ap- 
propriation to  some  useful  purpose.  I^et  us  examine  this  case 
in  the  light,  not  onlj'-  of  the  decisions  rendered  prior  to  the 
Farley  case,  but  also  those  rendered  after.  The  facts  in  the 
case  were  these :  Farley  settled  as  pre-emptor  upon  a  tract  of 
Government  land  through  which  a  stream  ran,  and  on  Febru- 
ary 27,  1871,  he  dulj'  filed  his  declaratory  statement,  and  in 
1877  made  his  final  proof  for  the  land,  and  on  January  23, 
1879,  duly  received  his  patent.  It  seems  that  a  reservoir  was 
constructed  upon  public  lands  by  defendant  after  the  filing  of 
plaintiff's  declaratory  statement  in  the  year  1871,  but  whether 
the  defendant  diverted  any  water  from  the  stream  or  not  to 
the  injury  of  plaintiff's  riparian  rights  does  not  appear.  The 
action  was  brought  by  the  plaintiff  to  recover  damages  for 
alleged  injuries  to  his  lands,  caused  by  the  flooding  of  them 
by  defendant's  reservoir,  and  for  an  injunction.  The  Court 
decided  that  "  the  plaintiff  was  not  entitled  to  judg- 
ment against  the  defendant  for  damages  under  the  proviso  of 
the  ninth  section  of  the  Act  of  July  26.  1866.  In  the  con- 
struction of  its  reservoir  the  defendant  did  not  injure  or  dam- 
age or  in  any  way  invade  the  possessions  of  the  plaintiff."  The 
grounds  upon  which  the  decision  was  rendered  were:  First,  the 
eighty  acres  claimed  by  plaintiff  was  public  land  of  the  United 
States  until  the  plaintiff  proved  up  his  claim  and  paid  for  the 
land  in  1877;  and  second,  until  lie  had  proved  up  and  paid  for 

I58  Cal.  142. 


336  RIGHTS    OF    APPROPRIATORS.  [§212,  213 

the  land  Congress  had  full  power  to  withdraw  the  land  from 
sale  or  to  sell  or  to  grant  it  to  another.  And  the  Court  cited 
in  support  of  these  two  propositions  Frisbee  vs.  Whitney,  9 
Wall.  187;  Hutton  vs.  Frisbee,  37  Cal.  476;  W.  P.  R.  R.  Co. 
vs.  Tevis,  41  Cal.  489.^  This  case  clearly  holds  to  the  doc- 
trine that  the  rights  of  a  patentee  of  the  United  States  as 
against  another  person  claiming  rights  of  way  and  rights  to 
water  flowing  over  the  public  lands,  under  the  Acts  of  1866 
and  1870,  only  relate  back  to  the  time  when  the  patentee  has 
performed  all  of  the  statutory  requisites  which  entitle  him  to 
receive  the  patent,  including  his  final  proof  and  payment  for 
the  land  if  required.  In  other  words,  his  riparian  rights  do 
not  relate  back  to  the  time  of  his  filing  his  preliminary  de- 
claration for  the  land  as  against  a  person  appropriating  the 
waters  of  a  stream  that  flows  over  or  adjoins  his  lands  or 
claiming  rights  of  way  for  the  same,  between  the  date  of  his 
declaration  and  the  final  performance  of  all  statutory  requis- 
ites. In  the  discussion  of  this  most  vital  question,  both  to 
appropriators  of  water  and  patentees  of  the  Government,  we 
will  divide  the  subject  into  three  heads:  First,  a  discussion 
of  the  decisions  following  the  rule  laid  down  in  the  Farley 
case;  second,  decisions  modif3'ing  in  some  particular  that 
case;  and  third,  a  discussion  of  those  decisions  which  are 
clearlv  against  the  rule  laid  down  in  that  case. 


§  213.    Decisions  Following  that  of  Farley  ys.  S.  T.  M.  & 

Ir.  Co. — -The  decisions  which  bear  upon  this  point,  and  have 
been  decided  in  exactly  the  same  manner  as  in  the  above  case, 
are  not  very  numerous.  The  point  involved,  that  an  ap- 
propriator  may  acquire  rights  to  water  which  flows  over  or 
adjoins  the  lands  of  a  claimant  to  the  same  under  the  laws  of 
the  United  States,  between  the  date  of  filing  his  declarator}- 
statement  and  the  date  of  his  patent,  seems  never  to  have  been 
fairl)^  before  the  Supreme  Court  of  California  since  the  Farley 


1  As  to  whether  the  case  was  the  discussion  upon  that  subject 
properly  decided  upon  these  au-  by  Professor  Pomeroy  in  section 
thorities  or   not,  we  will  refer  to       41,  Pomeroy  on  Riparian  Rights. 


§213] 


RIGHTS   OF    APPR0PUIAT0R3. 


337 


case  was  decided,  so  as  to  that  State  the  decision  rendered  in 
that  case  is  the  law  upon  the  subject  until  it  is  overruled.  ' 
The  case  of  Ellis  vs.  Pomeroy  Imp.  Co.,  decided  by  the 
Supreme  Court  of  the  State  of  Washington,  seems  even  to  go 
farther  than  the  Court  in  the  Farley  case.     In  that  case  the 


1  But  see  Lux  vs.  Haggin,  69  Cal 
255.     Post  section  214. 

The  case  of  Osgood  vs.  El  Dor- 
ado, etc.,  W.  Co.,  56  Cal.  572, 
often  cited  in  this  connection,  and 
cited  in  the  Farley  case,  we  do 
not  think  applies  to  the  question 
in  hand,  as  it  will  be  found  upon 
careful  investigation  to  have  been 
decided  upon  an  entirely  different 
point.  The  facts  in  that  case 
were  that  the  plaintiff  had  settled 
upon  a  certain  tract  of  public  land 
bordering  upon  a  stream  in  the 
year  1863,  and  had  resided  there 
ever  since.  The  land  was  not  sur- 
veyed by  the  Government  until 
1S65,  and  the  plaintiff  did  not  file 
his  declaratory  statement  until 
June,  1868— three  years  after  the 
land  was  surveyed,  when  under 
the  Act  of  Congress  of  1853  he 
ought  to  have  filed  it  within  three 
months  after  the  plat  of  the  sur- 
vey was  returned  to  the  local  land 
ofl5ce.  But  the  plaintiff  continued 
to  reside  upon  the  land  simply  as 
a  squatter  until  he  filed  his  de- 
claratory statement  in  1868.  In 
June,  1870,  he  made  his  final  proof 
and  completed  his  payment,  and 
on  October  25,  1871,  he  received 
his  patent  to  the  land.  But  the 
predecessors  of  the  defendant  had 
acquired  a  right  to  the  waters  of 
the  stream  that  related  as  far 
back  as  1867,  if  not  back  to  the 
year  1856,  which  was  at  least  one 
year  prior  to  the  time  when  any 
right   to   the   land  had   been    ac- 


quired by  the  plaintiff  except 
simply  a  squatter's  right.  And 
the  case  was  decided  upon  the 
point  that  even  if  the  plaintiff's 
title  did  relate  back  to  the  date  of 
his  declaration  in  1868  the  de- 
fendants had  still  a  prior  right, 
which  had  accrued  at  least  one 
year  earlier,  in  1867.  But  the 
Court,  after  stating  the  facts  of 
the  case,  said:  "On  this  showing 
the  plaintiff  seeks  to  invoke  the 
doctrine  of  relation;  but  for  ob- 
vious reasons  no  case  was  made 
for  the  application  of  that  doc- 
trine." And  at  this  point  the 
Court  cited  the  cases  of  Megerle 
vs.  Ashe,  33  Cal.  74;  Daniels  vs. 
Lansdale,  43  Cal.  41;  Smith  vs. 
Athern,  34  Cal.  507;  Lansdale  vs. 
Daniels,  10  Otto,  118;  and  after- 
wards said:  "The  plaintiff's 
rights  must  therefore  be  held  to 
have  attached  on  the  25th  of  Oc- 
tober, 1871,  the  date  of  the  issu- 
ance of  his  patent."  The  "ob- 
vious reason  "as  to  why  the 
plaintiff  had  made  no  case  for  the 
application  of  the  doctrine  of  rela- 
tion so  as  to  antedate  the  rights  of 
the  defendants  to  appropriate  the 
water  can  be  readily  seen  by  re- 
ferring to  the  cases  cited,  where 
it  is  helil  that  before  the  plat  is 
retimed  to  the  local  land  office  a 
settler  upon  the  land  cannot  file 
his  declaratory  statement;  but 
under  the  Act  of  March  3,  1853,  a 
person  to  acquire  a  pre-emption 
or    other   right  to   land  must  file 


338 


RIGHTS    OF    APPKOPRIATORS. 


[§213 


plaintiff  filed  upon  the  land  on  May  28tli,  1878,  made  his  final 
proof  April  13th,  1880,  and  received  his  patent  November 
loth,  1882,  the  defendant  in  the  Spring  of  1878  made  an  ap- 
propriation of  the  water  of  the  stream  which  ran  through 
plaintiff's  land.     In  an  action  brought  to  restrain  the  defen- 


ihe  requisite  notice  of  his  claim 
in  the  land  office  for  the  district 
within  three  months  after  the  plat 
of  the  survey  is  returned  to  the 
land  office. 

In  Megerle  vs.  Ashe,  cited  in 
the  opinion,  Sawyer,  J.,  in  con- 
curring specially  upon  this  point, 
says:  "The  date  of  the  filing  is 
important  to  both  parties,  for  till 
the  lands  are  finally  surveyed  the 
plaintiff  was  not  authorized  to  file 
his  declaratory  statement,  and  if 
his  declaratory  statement  was  not 
filed  within  three  months  after 
the  filing  of  the  plats  in  the  land 
office  his  pre-emption  right  would 
not  connect  itself  with  his  prior 
possession,  and  date  by  relation 
from  the  time  of  his  first  entry." 
Thereby  clearly  inferring  at  least 
that  if  it  had  been  filed  in  time  it 
would  so  have  related  back  to  the 
date  of  the  settlement. 

The  case  of  Daniels  vs.  Lans- 
dale,  cited  to  support  the  proposi- 
tion laid  down  by  the  Court, 
simply  decides  the  question  that 
the  filing  of  the  declaratory  state- 
ment in  the  local  office  before  the 
plat  of  the  survey  is  filed  is  prema- 
ture and  of  no  effect. 

The  case  of  Smith  vs.  Athern, 
if  it  holds  anything,  holds  just  op- 
posite  to  the  opinion  of  the  Court 
quoted  above  in  the  Osgood  case. 
That  was  a  contest  between  con- 
flicting patentees  obtaining  their 
patents  from  the  United  States 
and  the  State  of  California.     The 


plaintiff  claimed  by  virtue  of  his 
declaratory  statement  filed  upon 
the  i6th  of  April,  1856,  and  settle- 
ment upon  the  land  in  October,  in 
1862,  and  patent  obtained  in  Oc- 
tober, 1862,  and  also  a  later  patent 
from  the  State,  the  land  having 
been  surveyed  in  1855.  The  de- 
fendant claimed  the  land  by  vir- 
tue of  the  assignor  filing  on  the 
7th  of  March,  1856— over  one 
month  prior  to  plaintiff — a  school 
land  warrant,  and  applied  for  a 
location  thereof  on  the  identical 
land  in  contest,  which  location 
was  approved  by  the  Register  of 
the  land  office  on  the  loth  of  the 
same  month.  The  land  warrant 
by  which  the  defendant  claimicd 
the  location  was  issued  by  the 
State  for  school  purposes  under 
the  Congressional  grant  of  April, 
1841,  of  five  hundred  thousand 
acres  of  land  to  be  selected  by  the 
State  after  the  land  should  be  sur- 
vej'ed  by  the  United  States.  And 
he  also  claimed  by  a  patent  issued 
to  him  by  the  State  on  the  8th  of 
January,  1862.  Therefore  upon 
this  state  of  facts  the  defendant 
clearl)'  had  the  prior  equity  to  the 
land,  and  the  Court,  in  holding 
that  a  junior  patent,  founded  on  a 
prior  equity,  will  prevail  over  an 
elder  patent  founded  on  a  junior 
equity,  said:  "  In  cases  of  con- 
flicting patents  from  a  paramount 
source  of  title  it  is  well  settled  that, 
even  at  common  law,  in  actions  of 
ejectment  the  Court  will  look  be- 


§  213] 


RIGHTS    OF    APPROPRIATORS. 


339 


dant  from  appropriating  the  water  judgment  was  rendered  in 
the  trial  Court  for  it,  and  the  plaintiff  appealed.  The 
Supreme  Court  affirmed  the  judgment,  principally,  it  is  true, 
from  the  fact  that  from  certain  actions  of  the  plaintiflf  he  was 
estopped  from  asserting  any  claim  to  the  water  by  virtue  of 


hind  the  patents  and  ascertain 
which  party  had  the  prior  equity. 
When  this  is  ascertained  the 
equity  will  attach  itself  to  the 
legal  title,  which  will  take  effect 
by  relation  at  the  time  when  the 
equity  accrued;  Thus  it  often 
happens  that  a  junior  patent, 
founded  on  a  prior  equity,  is  held 
even  in  a  Court  of  law  to  prevail 
over  an  elder  patent  founded  on  a 
junior  equity.  Citing  Ross  vs. 
Barland,  i  Peters,  655;  Bagnell  vs. 
Broderick,  13  Peters,  436.  *  *  * 
In  a  contest  founded  on  prior 
equities  dates  become  in  every 
sense  material.  To  overcome  the 
defendant's  equity,  which  we 
have  seen  commenced  on  the  loth 
of  March,  1856,  it  was  incumbent 
on  the  plaintiff  to  show  by  proof 
that  prior  to  that  time  his  equity 
attached  by  reason  of  his  prior  set- 
tlement upon  and  occupation  of 
the  land  under  such  circumstances 
as  entitled  him  to  pre-empt  it,  and 
that  he  did  in  fact  afterwards  take 
the  necessary  steps  required  by 
law  to  make  his  pre-emption  ef- 
fectual. He  has  failed  to  make 
such  proof,  and  his  patent  cannot 
cure  the  omission.  *  *  *  The 
defendant  in  this  case  claims 
under  such  a  patent,  which  is 
older  than  the  plaintiff's  patent, 
and  the  only  ground  on  which  the 
plaintiff  can  overcome  the  de- 
fendant's older  legal  title,  coupled 
with  his  equity,  is  by  showing 
that    the    plaintiff   has    a    better 


equity  arising  from  his  prior  oc- 
cupation and  settlement,  followed 
up  by  proper  proceedings  to  per- 
fect his  pre-emption,  and  that 
these  proceedings  had  resulted  in 
a  patent."  Just  how  the  decision 
in  this  case  can  support  the  con- 
clusion of  the  Court  in  the  Osgood 
case,  that:  "  The  plaintiff's  rights 
must  therefore  be  held  to  have 
attached  on  the  25th  of  October, 
1S71,  the  date  of  the  issuing  of  his 
patent,"  we  are  unable  to  see. 

The  case  of  Lansdale  vs.  Dan- 
iels, cited  by  the  Court  as  also 
sustaining  the  conclusion  quoted, 
was  a  contest  between  two  lo- 
cators upon  the  same  quarter  sec- 
tion of  land.  The  plaintiff  made 
his  settlement  upon  the  land  on 
the  first  day  of  November,  1853, 
and  the  defendant  filed  his  declara- 
tion and  settled  on  the  same  quar- 
ter on  the  22nd  day  of  February, 
1854,  the  land  being  still  unsur- 
veyed  when  the  defendant  filed 
his  declaration.  But  the  plaintiff, 
as  will  be  seen  from  the  dates,  set- 
tled upon  the  land  more  than 
four  months  prior  to  the  settle- 
ment of  the  defendant,  although 
he  did  not  file  his  declaratory 
statement  until  the  nth  day  of 
October,  1858,  thus  as  authority  is 
given  to  file  within  three  months 
after  the  plats  of  surveys  are  re- 
turned to  the  local  land  office, 
which  plats  are  returned  on  the 
26th  day  of  April,  1856,  and  there 
being    no   authority   whatever   to 


340 


RIGHTS    OF    APPROPRIATORS. 


[§  213 


his  patent,  but  in  the  opinion  upon  the  general  doctrine  of 
relation  as  between  a  patentee  of  the  Government  and  those 
claimincr  the  water  of  a  stream  which  naturally  flows  over  tlie 
land  included  in  the  patent  by  virtue  of  an  appropriation,  the 
Court  said:  "  But  in  fact  Ellis  had  no  vested  right  which  he 
could  assert  against  the  Company's  water  right  prior  to  April 
30th,  1S80,  that  being  the  time  when  he  made  final  proof, 
while  they  acquired  a  vested  right  prior  to  this  (spring  of 
1878)  by  exercising  an  actual  appropriation  of  this  water.  A 
mare  entry  upon  the  public  lands  gives  no  vested  rights  against 


file  upon  any  land  of  the  United 
Slates   prior    to    the    time  when 
such  plat  was  returned  to  the  local 
land  office;  and  also  that  a  settler 
upon  unsurveyed   lands  must  file 
his  declaration  in  the  land  office 
within    three    months    after    the 
plat  of   the   survey   has   been   re- 
turned,   both  plaintiff's   and   de- 
fendant's   filings  were   defective 
in  this,   that  the   plaintiff's   filing 
was  too  late  and  the   defendant's 
filing  was   premature.     In   an  ac- 
tion for  ejectment  brought  by  the 
plaintiff,  which  was  finally  carried 
to    the    Supreme    Court     of    the 
United    States,  that   Court   upon 
the  subject   of    superior   equities 
said:      "Nor    does    the    plaintiff 
rely  entirely  upon  the  proposition 
that   his   is   the   superior   equity, 
which  of  itself  is  sufficient  to  show 
that  the  judgment  below  must  be 
affirmed,  but  it  also  appears  that 
the  parties  were   fully   heard  be- 
fore the  Land  Department,  where 
the  decision  was  in  his  favor,  and 
that  he  now  holds   the  patent  for 
the  land,   from    which   it   follows 
that  the  legal  title  is  in  the  plaint- 
iff.    Neither   of   the  parties  com- 
plied strictly  with  the  law  in  filing 
the    declaratory    statement;   but, 


inasmuch  as  the  plaintiff  holds 
the  legal  title  and  the  superior 
equity  it  is  clear  that  the  de- 
fendant has  no  such  standing  in 
court  as  will  justify  a  Court  of 
Equity  in  interfering  in  his  be- 
half." Thus  the  Court  clearly 
held  that  as  against  all  others 
claiming  the  land  under  the  Gov- 
ernment the  equity  of  the  plaintiff 
related  back  to  the  time  of  his  set- 
tlement upon  the  land. 

So  that  if  tlie  conclusion  reached 
b)'  the  Court  in  the  Osgood  case, 
quoted  above,  is  to  be  taken  to 
mean  generally  that  the  rights  to 
the  land  and  the  incidents  thereto 
relate  no  further  back  than  the 
date  of  the  patent  of  a  claimant, 
and  the  only  authorities  upon 
which  the  Court  rests  its  con- 
clusion are  those  cases  cited  by  it, 
with  all  due  respect  to  the  Su- 
preme Court  of  California,  we  are 
of  the  opinion,  and  a  careful  ex- 
amination of  those  cases  will  bear 
us  out  in  our  views,  that  the  con- 
clusion quoted  in  that  case  was 
erroneous.  In  fact  an  examina- 
tion of  the  records  will  show  that 
two  of  the  members  of  the  Court 
dissented  from  the  conclusion 
reached.     See  2  Pac.  C.   L.  J.  332. 


§  213.J  RIGHTS    OF    API'UOPIUATOKS.  341 

the  Government  until  the  final  proof.  It  makes  a  prior  right 
of  pre-emption  and  establishes  a  privilege  as  against  other 
claimants  subject  until  final  proof,  etc.,  to  the  absolute  dis- 
possessing power  of  Congress;  9  U.  S.  St.,  p.  195.  Land  thus 
occupied  is  subject  to  the  acquisition  of  prior  water  rights, 
under  local  customs  and  appropriations.  It  would  also  be 
subject  to  such  acquisition  up  to  the  time  of  final  proof,  when, 
and  only  when,  such  privilege  becomes  a  vested  right.  It  is 
up  to  such  time,  therefore,  subject  to  the  water  rights  being 
acquired  therein  by  others,  unless  such  settler  or  pre-emptor 
promptly  exercises  his  water  right  and  makes  his  appropria- 
tion. *  *  *  Until  final  proof,  then,  he  had  no  vested  right, 
and  his  patent  could  not,  therefore,  relate  back  under  any 
circumstances  to  his  original  filing  and  back  of  this  final 
proof,  while  long  prior  to  this,  by  the  actual  appropriation  in 
1878,  the  Company  had  acquired  a  positive,  certain,  and 
vested  right. "^ 

The  principles  in  this  case,  as  set  forth  above,  were  affirmed 
by  the  Supreme  Court  of  Washington  also,  in  the  case  of 
Geddis  vs.  Parish.^ 

As  to  whether  the  conclusions  which  were  reached  by 
the  Court  in  the  case  of  Farle}"  vs.  Spring  Valley  M.  & 
Ir.  Co.  were  sustained  by  the  decisions  cited  in  support 
thereof^  we  will  refer  to .  those  decisions  themselves,  and 
to  a  discussion  upon  the  subject  by  Professor  Pomeroy.^  He 
holds  that  a  question  other  than  that  of  the  conflicting 
rights  of  two  persons  claiming  the  water  of  streams  which  once 
flowed  over  the  public  domain,  one  by  virtue  of  an  appropria- 
tion of  the  same  and  the  other  by  virtue  of  interest  in  the 
soil  over  which  the  stream  ran,  was  passed  upon  in  the  three 
decisions  cited  by  the  Court;  and  that  the  question  before  us 
was  not  embraced  in  them  or  passed  upon  by  the  Court  ren- 
dering those  decisions.     We  are  inclined  to  believe  that  a 

1  I  Wash.  572,  21  Pac.  Rep.  27.  ^^  I'risbee   vs.    Whitney,  9  Wall. 

2 1  Wash.  587;  21   Pac.  Rep.  314.  1S7;  Hiitton  vs.   Frisbee,  37    Cal. 

See  also  Gibson  vs.  Chouteau,  39  475;    Western    Pac.    Ry.    Co.    vs. 

Mo.  58S;  but  reversed  by  Supreme  Tevis,  41  Cal.  489. 

Court  of  the  United  States  in  13  4  i  West.  Coast.  Rep.  531,  ,s.v}. 
Wallace,  92. 


342  RIGHTS    OF    APPROPRIATORS.  [§  213,  214 

careful  study  of  those  cases  will  show  that  he  was  correct  in 
his  views. 

§  214.     Decisions  Modifying  Rule  Laid  Down  in  Farley 

vs.  S.  V.  M.  &  Ir.  Co. — There  are  a  large  number  of  decisions 
that  hold  that  the  rights  of  a  patentee  of  the  Government  to 
the  land  and  all  its  incidents  relate  at  least  as  far  back  as  the 
time  when  he  had  dulj^  performed  all  the  statutor}^  require- 
ments, including  the  making  his  final  proof  and  the  payment 
for  the  land,  if  necessary;  and  these  decisions  differ  from  or 
modify  to  that  extent  the  rule  laid  down  in  the  Farley  case. 
These  cases  hold  that  the  water  of  a  stream  which  flows  over 
or  adjoins  the  land  of  a  person  having  entered  the  land  for 
the  purpose  of  securing  a  patent  cannot  be  appropriated  so 
as  to  injure  the  riparian  riglits  of  the  claimant  between  the 
date  of  his  certificate  to  the  land  and  the  date  of  his  patent, 
on  the  ground  that  the  complete  equitable  title  is  vested  in 
the  claimant,  and  his  rights  to  all  the  incidents  to  the  land 
relate  back  to  the  date  of  the  certificate. ^ 

Upon  this  doctrine  of  relation  Mr.  Justice  Hillyer,  in  ren- 
dering the  opinion  of  the  Circuit  Court  of  the  United  States, 
in  the  case  of  Union  M.  &  M.  Co.  vs.  Dangberg,'-^  said:  "A 
point  made  by  the  plaintiff  is,  that  some  of  the  defendants, 
who  have  entered  and  paid  for  their  land  and  received  a  cer- 
tificate of  purchase,  but  no  patent  as  yet,  have  no  title  by 
virtue  of  which  they  can  claim  and  exercise  riparian  rights. 
It  is  true  that  such  defendants  have  not  the  strict  legal  title; 
but  it  is  settled  that  the  entry  and  payment  and  certificate 
thereof  convey  the  equitable  title,  thereafter  the  land  ceases 
to  be  public,  and  the  Government  has  no  right  to  sell  it 
again,  but  holds  the  legal  title  in  trust  for  the  purchaser." 
And  the  Court  held  that  one  who  has  entered  and  paid  for 
the  land,  and  received  a  certificate  of  purchase,  has  the  equi- 
table title  and  is  entitled  to  riparian  rights,  although  he  has 
not  yet  received  his  patent. 

1  See  People   vs.  Slierer,  30  Cal.  States,   4   Wall.   232;    Gibson    vs. 

648;    Carroll  vs.    Safford,  3  How.  Chouteau,  13  Wall.  92. 

441;    Witherspoon  vs.   Duncan,  4  2  2  Sawyer,  450,  455. 
WfiJ'.     210;    Hughes   vs.     United 


§  214,  215.]  RIGHTS    OF    APPROPRIATORS.  343 

The  Supreme  Court  of  California,  in  i8S6,  in  the  case  ot 
Lux  vs.  Haggin,^  modified  the  rule  laid  down  in  the  Farley 
case — although  not  referring  to  that  opinion  in  anj-  way — as 
applying  to  the  sale  of  lands  of  the  State  to  individuals.  The 
Court  said:  "While  the  contract  of  purchase  is  recognized  by 
the  State  authorities  as  alive  the  water  of  a  stream  flowing 
through  the  land  cannot  be  diverted  by  a  mere  appropriator. 
*  *  *  All  lands  thus  contracted  for  are  reserved  from  the 
eflfect  and  operation  of  an)^  appropriation  of  water  until  failure 
of  the  purchaser  to  complete  his  payments,  the  completion 
whereof  can  be  proved  by  patent  issued  within  the  time  lim- 
ited by  law.  *  *  *  The  effect  of  holding  that  a  valid 
diversion  of  water  from  the  lands  could  be  made  after  part 
payment  therefor,  and  certificate,  would  be  to  deprive 
them  of  the  moneys  paid,  or  of  the  benefit  of  the  w^ater,  which 
may  have  been  a  principal  inducement  to  the  purchase." 
Just  why  an  individual  purchasing  land  from  the  State  should 
be  protected  by  the  Court  of  California  from  the  time  when 
he  makes  his  first  payment  and  enters  the  land — in  other 
words,  from  the  very  inception  of  his  title — any  more  than  an 
individual  who  enters  public  lands  of  the  United  States  located 
within  the  State  of  California,  in  accordance  with  the  land 
laws  of  the  United  States,  should  be  protected  from  the  very 
inception  of  his  title  we  are  unable  to  see. 

§  215.  Decisions  Holding  Clearly  Against  the  Rule  in 
the  Farley  Case. — In  the  first  place,  in  controversies  against 
those  claiming  the  same  tract  of  land  by  virtue  of  some  entry, 
or  even  a  patent  from  the  Government,  the  Courts  have  always 
held  that  if  all  the  statutory  requirements  were  properly 
taken  towards  the  completion  of  the  title  the  prior  equity 
must  prevail,  thereby  applying  the  doctrine  of  relation  in 
controversies  between  two  persons  who  claimed  the  same  tract 
of  land  back  to  the  time  of  filing  the  preliminary  declaration, 
or  even  to  the  bona  fide  settlement  upon  the  land — in  other 
words,  to  tlie  very  inception  of  the  claimant's  title.-     Why, 

1  69  Cal.  434-35,  10  Pac.  Rep.  674,  113;  Opinion  of  Attorney-General 
77CJ.  MacVea.t^h,  i   I<an(l  Dec.  30;  Red 

2  Lansdale  vs.  Daniels,  100  U.  vS.       River  etc.   Ry.   Co.   vs.  Store,   32 


344  RIGHTS    OF    i^PPROPRIATORS.  [§215,216. 

then,  does  not  the  same  rule  prevail  between  persons,  one  of 
whom  claims  the  land  adjoining  the  stream,  with  all  the 
riparian  rights  of  such  a  locality  by  virtue  of  an  entry  made 
prior  to  any  appropriation  of  the  waters  of  the  stream,  and 
the  other,  who  claims  the  water  to  the  stream  by  virtue  of  an 
appropriation  of  those  waters,  made  subsequently  to  the  entry 
on  the  land  ?  Then  again,  sustained  by  a  long  line  of  decis- 
ions of  the  General  Land  Office,  which  in  turn  are  sustained 
by  the  Supreme  Court,  the  principle  is  established  that  the 
moment  the  settler  files  his  preliminary  declaration  an  equity 
to  the  land  attaches  in  his  favor,  which,  if  he  strictl}^  com- 
plies with  the  law,  must  prevail  in  his  favor,  not  only  against 
the  individual  laying  claim  to  the  same  tract  of  land,  subject 
to  the  entry  of  the  first,  but  also  against  the  Government 
itself. 

§  216.  Same.— Ruling  of  (leneral  LjiikI  Ottiee  Upon  the 
Subject. — In  regard  to  the  proposition  above  stated,  Att'y-G-en. 
MacVeagli,  in  his  letter  under  date  of  July  15,  1881,  said:  ^  "In 
regard  to  the  case  of  a  homestead  settlement  the  claim  of  a 
settler  is  initiated  by  an  entry  of  the  land.  This  is  effected 
by  making  an  application  at  the  proper  land  office,  filing  the 
affidavit,  and  paying  the  amount  required  by  section  2290 
Revised  Statutes,  and  also  paying  the  commission  as  required 
by  section  2238  Revised  Statutes.  It  is  true  a  certificate  of 
entr}'-  is  not  then  given,  the  certificate  being,  under  section 
2291  Revised  Statutes,  withheld  until  the  expiration  of  five 
j^ears  from  the  date  of  such  entry.  At  the  end  of  which 
period,  upon  proof  of  settlement  and  cultivation  during  that 
period,  and  payment  of  the  commissions  remaining  to  be 
paid,  is  issued.  But  upon  the  entry  a  right  in  favor  of  the 
settler  would  seem  to  attach  to  the  land,  which  is  liable  to  be 
defeated  only  by  failure  on  his  part  to  comply  with  require- 
ments of  the  homestead   law   in   regard    to  settlement    and 

Minn,  95;  White  vs.  Hastings,  etc.  berry,  121  U.  S.  4S8;  Schulenberg 

Ry.  Co.  2  Copp's  Pub.  I^and  Laws,  vs.  Harriman,  88  U.  vS.  44;  Shepley 

878;  Meggerle  vs.  Ashe,  33  Cal.  74;  vs.  Cowan,  91  U.  S.  330. 

Ryan   vs.    Central   Pac.    Ry.    Co.,  1  Land  Dec.  31,  32. 
99    IT.   S.  382;     Wright   vs.    Rose- 


§  216,  217]  RIGHTS    OF    APPROPUIATORS.  345 

cultivation.  This  right  amounts  to  an  equitable  interest  in 
the  land,  subject  to  the  future  performance  by  the  settler  of 
certain  conditions  (in  the  event  of  which  he  becomes  invested 
with  full  and  complete  ownership),  and  until  forfeited  by 
failure  to  perform  the  conditions  it  must,  I  think,  prcrai/  not 
only  against  individuals  but  against  the  Government.''  This 
line  of  decisions  also  settled  the  question  that  lands  originally 
public  ceased  to  be  public  after  they  had  been  entered  by 
claimants  at  the  land  office.^ 

§  217.  Same.— General  Laud  Ollice  Sustained  by  the  Su- 
preme Court  of  the  United  States.— Upon  this  important  ques- 
tion  in  the  contest  before  the  General  I^and  Office  of  Graham 
vs.  Hastings  D.  Ry.  Co. ,2  Secretary  Teller  held:  "that  an  entry 
of  record  which  on  its  face  is  valid,  reserves  the  land  covered 
thereby  from  the  operation  of  any  subsequent  law,  grant  or 
sale,  until  a  forfeiture  is  declared  and  the  land  restored  to  the 
public  domain."  And  in  an  action  brought  by  the  railway 
company  in  the  District  Court  to  recover  the  land  the  Court 
decided  adversely  to  the  decision  of  the  General  Laud  Office. 
But  the  Supreme  Court  of  the  State  of  Minnesota  reversed  the 
decision  of  the  trial  Court  and  the  case  was  again  appealed, 
this  time  to  the  Supreme  Court  of  the  United  States,  which 
Court  affirmed  the  decision  of  the  Supreme  Court  of  Minne- 
sota and  held  that  lands  originally  public  ceased  to  be  public 
after  they  have  been  entered  at  the  Land  Office,  and  a  certifi- 
cate of  entry  has  been  obtained.  Thus  the  last  two  Courts 
held  with  the  decision  rendered  in  the  General  Land  Office,  and 
sustained  the  opinion  therein  laid  down  by  the  Secretary. 
And  Mr.  Justice  Lamar,  speaking  for  the  Supreme  Court  of 
the  United  States,  in  rendering  the  opinion  said:   "It  is  true 

1  See  also  St.  Paul  etc.  Ry.  Co.  hall,   4  I-i"J  ^^"^^  249-     See  also 

vs.   Fonseth,     3    Land    Dec.    146;  Shepley  vs.  Cowan,  91    U.  S.  33°. 

Southern  Minn.   Ry.  Co.  vs.  Gal-  where  it  was  held  that  the  patent 

lipean,  3  Land  Dec.  166;  Hastings  which  is  afterwards  issued  relates 

etc.  Ry.  Co.  vs.   United  States,   3  »>ack  to  the  initiatory  act  and  cuts 

Land  Dec.  479;  St.  Paul   etc.  Ry.  off  all  inlerveniuK  claims. 

Co.  vs.    Leach,   3  Land   Dec.   506;  2i  Land  Dec.  362. 
Hastings  etc.  Ry.   Co.   vs.  White- 


346  IlIGHTS   OF   ArPROPRIATORS.  [§  21*7,  218 

that  the  decisions  of  the  I^and  Department  on  matters  of  law 
are  not  binding  upon  this  Court  in  any  sense,  but  on  questions 
similar  to  the  ones  involved  in  this  case  they  are  entitled  to 
great  respect  at  the  hands  of  any  Court.  In  United  States 
vs.  Moore,  95  U.  S.  760,  this  Court  said:  '  The  construction 
given  to  a  statute  by  those  charged  with  the  duty  of  executing 
it  is  always  entitled  to  the  most  respectful  consideration,  and 
ought  not  to  be  overruled  without  cogent  reasons.  *  *  *  The 
officers  concerned  are  usually  able  men  and  masters  of  the 
subject,  not  unfrequently  they  are  the  draftsmen  of  the  laws 
they  are  afterwards  called  upon  to  interpret.'  "  ^ 

From  these  authorities,  it  is  well  settled  that  from 
the  moment  an  entry  upon  a  tract  of  public  land  is  made, 
the  land  ceases  to  be  public  and  is  reserved  by  such  entry 
from  the  operation  of  any  law,  grant  or  sale,  and  made  sub- 
ject to  that  entry.  Hence,  in  drawing  our  conclusions  from 
the  above,  it  follows  that  if  after  the  entry  the  land  ceases  to 
be  public  land  it  must  become  private  land,  and  all  the  inci- 
dents thereto  must  become  private  incidents  held  in  trust  by 
the  Government  until  the  claimant  shall  have  performed  all 
the  statutory  requirements.  And  the  waters  which  flow  over 
or  adjoin  that  land  as  an  incident  thereto,  if  the}'  have  not 
been  appropriated  prior  to  the  time  of  the  very  inception  of 
the  claimant's  title,  in  those  jurisdictions  where  the  common 
law  rules  upon  the  subject  of  riparian  rights  are  recognized 
and  protected,  must  become  private  incidents  to  the  land;  and 
if  appropriated  subsequent  to  the  inception  of  the  title  of  the 
claimant  of  the  land  such  appropriation  must  be  held  sub- 
ject to  the  riparian  rights  of  such  claimant. 

§  218.  Same.— Discussion  Conlimietl. — It  is  held  in  a 
great  many  cases  that  the  law  gives  the  use  of  the  water 
which  runs  through  his  farm  to  a  party  taking  up  the  land. 
To  make  another  party  a'  prior  appropriator  he  must  have 
taken  out  the  water  under  a  claim  of  right  while  the  land  was 

1  132  U.  S.  357,  367.  States   vs.    Burlington,    etc.,    Ry. 

See   also    on   point  Brown  vs.  Co.,    98  U.    S.    334,    341;    Kansas 

United  States,  113  U.  S.  568,  571;  Pac.    Ry.    Co.  vs.  Atchison,  etc., 

and    cases    there    cited.      United  Ry.  Co.,  112  U.  S.  414,  418. 


§  218,  219]  RIGHTS    OF    APPROPRIATORS.  347 

Still  in  the  possession  of  the  Government,  and  before  any  claim 
or  settlement  had  been  made  upon  the  same.^  And  the 
Supreme  Court  of  the  United  States,  in  a  great  many  cases, 
has  recognized  the  prior  possession  of  claimants  to  land 
against  intruders  and  trespassers.-  Why  do  not  the  Courts 
apply  the  same  rule  to  the  incidents  to  the  land?  This  would 
bring  all  claimants  to  water  upon  the  public  domain  of  the 
United  States  since  the  passage  of  the  law  of  July  26th,  1866, 
upon  an  equality,  regardless  as  to  whether  the  water  was 
claimed  by  virtue  of  appropriation  of  the  same,  or  by  virtue 
of  the  ownership  of  the  land  through  which  or  adjoining 
which  the  stream  flow^s.  The  great  principle  which  governs 
all  other  controversies  between  different  claimants  to  the  same 
tract  of  land,  and  between  different  appropriators  of  the  water 
of  the  stream  upon  the  public  domain,  would  then  also  govern 
all  controversies  between  those  who  claim  the  land  and  those 
who  claim  the  water  flowing  over  the  land;  that  is  to  say,  he 
who  has  the  prior  has  the  superior  right.  That  was  evidently 
the  intent  of  Congress  when  it  passed  the  general  statutes 
that  govern  both  the  land  and  the  water,  and  as  we  shall  see 
in  the  next  section,  the  Supreme  Court  of  the  United  States 
in  a  very  recent  case  has  settled  this  very  difficult  and  impor- 
tant question. 

§  21S).  Same.— StuiT  vs.  Beck.^  —It  was  not  until  the 
above  entitled  case  was  brought  before  the  Supreme  Court  of 
the  United  States  that  that  body  had  the  opportunity  to  ex- 
amine into  and  decide  the  exact  question  in  point.  That  is  to 
say,  whether  the  rights  of  a  bona  fide  settler  upon  the  public 
lands  so  relate  back  from  the  date  of  his  patent  to  the  date  of 
his  actual  settlement  upon  the  land  or  to  his  filing  his  declara- 
tory statement,  as  the  case  may  be — to  the  very  inception  of 
his  title — so  that  all  appropriations  of   water   made  from  a 

1  Union   M.  &  M.  Co.  vs.  Dang-  307;    Trtnoutli   vs.   San    l-rancisco 

berjr,  2  Saw.  455;  Lux  vs.  Ila^Rin,  Co.,    100   U.    S.    251;   Durand   vs. 

69  Cal.  255;  Weiss  vs.  Oregon  I.  &  Martin,  120  U.  vS.  366;  Cliuuny  vs. 

S.  Co.,  13  Or.  496.  Culvcrson,  5  Sawyer,  605;  Mower 

SAtherton  vs.  Fowler,  96  U.   S.  vs.  l-letcher,  116  U.  S.  3:'>i. 

513;  Lamb  v>.  Davenport,  85  U.  S.  •*  133  ^'-  '^-  5U- 


348  RIGHTS    OF    APPROPRIATORS.  [§  219 

stream  that  flows  over  or  adjoins  the  tract  of  land  of  the 
patentee,  which  was  made  between  the  first  inception  of  his 
title  and  the  date  of  his  patent,  should  be  subsequent  and  sub- 
ject to  his  riparian  rights.  Or  in  other  words,  whether  a  per- 
son could  acquire  rights  in  and  to  the  waters  of  the  stream  by- 
virtue  of  an  appropriation  of  the  same  at  any  time  between 
the  inception  of  the  title  of  the  patentee  and  the  date  of  his 
patent,  so  that  those  rights  would  be  prior  to  the  riparian 
rights  of  the  patentee.  The  above  case,  decided  on  March  3, 
1890,  was  the  first  case  brought  before  that  honorable  Court 
wherein  the  exact  question  was  decided;  and  it  fell  to  the  lot 
of  the  present  Chief  Justice,  Mr.  Justice  Fuller,  to  write  the 
opinion  in  that  case,  which  was  done  in  a  manner  so  satis- 
factory that  not  a  Justice  dissented. 

The  facts  in  that  case  were  as  follows:  The  suit  was  brought 
by  Daniel  Sturr  in  a  District  Court  of  the  Territory  of  Dakota, 
seeking  an  injunction  against  the  defendant  from  interfering 
with  an  alleged  water  right  and  ditch  of  the  complainant  and 
the  use  of  the  waters  of  a  certain  creek  through  the  same. 
The  following  is  the  substance  of  the  findings  of  facts,  and  is 
all  of  those  found  by  the  Court  necessary  to  state  here: 
Second.  That  one  John  Smith  made  a  homestead  entry  of  a 
certain  tract  of  land  on  the  25th  day  of  March,  1879,  and 
thereafter  made  his  final  proof  on  the  loth  day  of  May,  1883, 
having  settled  on  the  land  in  1877,  and  for  which  a  United 
States  patent  was  issued  to  him  December  20,  1883.  He  had 
resided  on  the  land  continuously  from  the  date  of  his  settle- 
ment until  he  sold  to  defendant  Beck,  in  May,  1884.  Third. 
That  on  or  about  the  15th  day  of  May,  1880,  the  plaintiff 
Sturr,  without  any  grant  from  Smith,  went  upon  the  home- 
stead claim  of  Smith  and  located  a  water  right,  claiming'  the 
right  to  divert  five  hundred  inches  of  the  waters  of  a  certain 
stream  then  and  long  prior  thereto  flowing  over  and  across 
said  land  of  Smith  in  its  natural  channel,  and  to  carry  the 
same  by  means  of  a  ditch  upon  his  own  homestead  claim  im- 
mediately adjoining  Smith's  land,  but  not  the  stream. 
Fifth.  Having  posted  the  notice  immediately  thereafter,  the 
plaiutifi"  constructed  a  ditch  across  the  John  Smith  homestead 
and  diverted  and  conveved  not  less  than  three  hundred  inches 


§  219]  RIGHTS    OF    APPROPUIATORS.  349 

of  the  waters  of  said  stream  for  the  purpose  of  irrigating  his 
own  lands  until  interfered  with  by  the  defendant  in  the  sum- 
mer of  1 886.  Seventh.  That  in  the  spring  of  i886  the  de- 
fendant Beck,  having  purchased  Smith's  land,  notified  the 
plaintiff  Sturr  to  cease  diverting  the  waters  of  the  stream 
from  their  natural  channel  upon  defendant's  land,  and  also 
forbade  him  maintaining  his  ditch  upon  defendant's  land  for 
that  purpose.  Eighth.  That  the  custom  existing,  and  which 
has  existed  in  Lawrence  County  ever  since  its  settlement,  rec- 
ognizes and  acknowledges  the  right  to  locate  water  rights  and 
to  divert,  appropriate  and  use  the  waters  of  flowing  streams 
for  purposes  of  irrigation,  when  such  diversion  and  use  does 
not  conflict  or  interfere  with  the  rights  vested  and  accrued 
prior  thereto.  Ninth.  That  neither  Smith  nor  defendant  Beck 
had  ever  appropriated  and  diverted  the  waters  from  the  stream. 
Eleventh.  That  the  use  of  said  water  for  irrigation  is  beneficial 
and  valuable  to  the  person  or  persons  owning  or  possessing 
the  same. 

The  conclusions  of  law  were:  First.  That  at  the  time  of 
location  of  the  water  right  made  upon  Smith's  homestead  by 
Sturr,  in  May,  i88o,  a  prior  right  to  have  the  waters  of  said 
stream  flow  in  the  regular  channel  of  said  creek  over  and 
across  said  land  had  vested  in  Smith  by  virtue  of  his  home- 
stead entry  made  on  the  25th  day  of  March,  1879.  Second. 
That  said  vested  right,  so  acquired  by  Smith,  was  conveyed 
to  defendant  Beck  on  May  ist,  1884.  Third.  That  the  plaint- 
iflf  Sturr  by  his  location  and  diversion  of  the  waters  of  said 
stream  so  made  by  him  as  aforesaid,  acquired  no  right  as 
against  said  defendant  Beck  to  divert  said  waters  or  maintain 
said  ditch  upon  defendant's  land  for  that  purpose.  Fourth. 
That  the  patent  issued  to  John  Smith  for  the  premises  men- 
tioned related  back  to  the  date  of  his  making  his  homestead 
filing  or  entry  of  said  premises,  on  the  25th  day  of  March, 
1879.  Fifth.  That  the  plaintiff  take  nothing  by  this  action. 
Judgment  was  accordingly  entered  in  favor  of  the  defendant, 
dismissing  the  complaint  upon  its  merits  and  awarding  costs. 
The  plaintiff  tliereupon  appealed  to  the  Supreme  Court  of  the 
Territory.  The  judgment  of  the  District  Court  was  afTirmcd 
by  the  Supreme  Court,  which  without  deigning  to  discuss  the 


350  RIGHTS    OF    APPROPRTATORS.  [§  219 

matter,  rendered  the  following  opinion:^  ''Per  Curiam.  The 
judgment  is  affirmed.  The  Court  holds  that  the  homesteader 
was  the  prior  appropriator  of  the  water  right,  and  the  plaintiff 
had  no  right  to  enter  upon  the  prior  possession  of  the  entry 
made  under  his  homestead  entry  and  appropriate  any  portion 
of  the  running  streams  or  creeks  thereof."  An  appeal  of 
the  case  was  then  taken  to  the  Supreme  Court  of  the  United 

States. 

At  this  point  we  wish  to  call  special  attention  to  the  facts 
in  this  case  and  those  in  the  case  of  Farley  \s.  Spring  Valley 
M.  &  M.  Co.,^  the  one  under  discussion.  These  cases  are  al- 
most identically  the  same.  Both  Sturr  and  the  Mining  and  Ir- 
rigating Company  appropriated  the  water  between  the  date  of 
the  filing  of  the  declaratoyy  statement  and  the  date  of  making 
finalproof  of  the  respective  claimants.  And  we  also  wish  to  call 
attention  to  the  point  that  the  case  was  submitted  to  the  Su- 
preme Court  of  the  United  States  by  the  appellant  upon  a 
brief  that  included  upon  the  point  in  question,  a  citation  to 
the  Farley  case,  the  Osgood  case,  the  Washington  cases  cited 
above  and  every  other  case  decided  that  had  any  bearing  upon 
their  side  of  the  question.  So  the  appellant,  and  all  those 
holding  his  side  of  the  question,  cannot  complain  that  the 
case  was  not  carefully  submitted. ^ 

1  50  N.  W.  Rep.  4S6.  mum  price  of  the  land  is  received 

2  rS  Cal.  142.  in  the  one  case  and  final  proof  is 

3  The  following  were  the   cases       made  in  the  other. 

cited  in  appellant's  brief  upon  the  Sitnmonds   vs.  Wagner,    loi  U. 

various  subjects:     That    until    it  S.    260;    Frisbie    vs.    Whitney,    9 

parts  with  its  ownership  the  Gov-  Wall.     194-196;    Yosemite    Valley 

ernment  is  the  riparian  proprietor  Case,  15  Wall.  77;  U.  S.  vs.  Storrs, 

of  the  public  lands.  14  Fed.  Rep.  824;  U.  S.  vs.  Lane,  19 

Atchison  vs.  Peterson,  20  Wall.  Fed.  Rep.  910;  U.  S.  vs.  Freyberg, 

510;    Irwine   vs.    Phillips,    5    Cal.  32  Fed.  Rep.  196;  U.  S.  vs.  Taylor, 

140;  Butte  C.  &  D.  Co.  vs.  Vaughn,  35  Fed.  Rep.   484;   Hammond  vs. 

II  Cal.  143;   Ortman  vs.  Dixon,   13  Rose,  11   Colo.  524;   Moriarity  vs. 

Cal.  33;   Basey   vs.    Gallagher,   20  Boone  Co.,  39   Iowa,  654;  Flint  & 

Wall.    681;     Broder    vs.    Natouia  P.  M.  R.  vs.  Gordon,  41  Mich.  420; 

Water  Co.,  loi  U.  S.  276.  French  vs.  Spencer,  21   How.  228; 

That  neither  pre-emption,  set-  Shepley  vs.  Cowan,  91   U.   S.  337; 

tlement  nor  homestead  entry  af-  Johnson  vs.  Ballon,  28  Mich.  379; 

fects  seo-regation  until  the  mini-  Osgood  vs.   El   Dorado   M.   &   M. 


§  219]  RIGHTS   OF    APPROPRIATORS.  oSl 

Yet  the  Supreme  Court  of  the  United  States,  after  a  most 
careful  consideration,  affirmed  the  judgment  of  the  Supreme 
Court  of  Dakota,  and  Mr.  Chief  Justice  Fuller,  after  stating 
the  facts  in  the  case,  in  the  opinion  said:  "  It  is  not  contended 
on  behalf  of  Sturr  that  he  is  entitled  to  maintain  the  ditch 
because  he  constructed  and  used  it,  or  that  Smith's  acquies- 
cence amounted  to  anything  more  than  a  revocable  license; 
there  was  no  grant  nor  an  adverse  enjoyment  so  long  continued 
as  to  raise  a  legal  presumption  of  a  grant.  But  it  is  insisted 
that  the  doctrine  of  prior  appropriation  of  zoater  on  the  public 
la7id  and  its  beneficial  use  protects  him  from  interference  because 
neither  Smith  nor  Beck  made  any  water  right  location  claim- 
ing the  waters  of  False  Water  Creek,  and  had  never  diverted 
the  water  prior  to  Sturr 's  location. 

"If,  however.  Smith  obtained  a  vested  right  to  have  the 
creek  flow  in  its  natural  channel  by  virtue  of  his  homestead 
entry  of  March  25th,  1879,  and  the  possession  thereunder, 
or  if  his  patent  took  effect  as  against  Sturr,  by  relation  as  of 
that  date,  then  it  is  conceded  that  Sturr  cannot  prevail  and 
the  judgment  must  be  affirmed. 

"The  right  of  a  riparian  proprietor  of  land  bordering  upon 

Co.,  56  Cal.  571;  Farley  vs.  Spring  Jackson  vs.  Bard,  4  Johns,  230, 

Valley  M.  Co.,  58  Cal.  142;  Tenem  234;    Jackson    vs.    Bull,    i   Johns 

Ditch  Co.  vs.   Thorpe  (Wash.),   20  Cas.  85;  Heath  vs.  Ross,  12  Johns, 

Pac.  Rep.  588;  Ellis  vs.   Pomeroy  140;  Tenem  Ditch  Co.  vs.  Thorpe, 

Imp.  Co.  (Wash.),  21  Pac.  Rep.  27;  20  Pac.    Rep.  58S;  Lynch  vs.  De 

Geddis  vs.  Parish  (Wash.),  21  Pac.  Bcrnal,'  9   Wall.   315;  Gibson  vs. 

Rep.  314.  Chouteau,  13  Wall.  loi;  Meggerle 

That  a   mere  right  of  pre-emp-  vs.    Ashe,    33  Cal.    74;   Smith   vs. 

tion  is  not  a  title.  Athern,   34   Cal.   506;  Daniels  vs. 

People  vs.  Shearer,  30  Cal.  648;  Lansdale,   43  Cal.   41;    100   U.  S. 

Hutton   vs.  Frisbee.   37   Cal.   491;  113;  Belk   vs.   Meagher,  104  U.  S. 

Western   P.  R.   Co.  vs.   Tevis,   41  283. 

Cal.  492;   Lowe    vs.   Hutchins,  41  That  Congress  intended   to  rec- 

Cal.  634;  Frisbie   vs.   Whitney,  9  ognize  as  valid  the  customary  law 

Wall.  187.  with  respect  to  the  use  of  water, 

That  the  doctrine   of  relation  is  which   had  grown  up  among  the 

a  fiction   of  law    for  the   further-  occupants    of    the     public    lands 

ance    of    justice,    but  is   not   ad-  under  the  peculiar  necessities  of 

mitted  to   the  prejudice  of  third  their  condition, 

parties  having  any  right.  Basey   vs.    Gallagher,    20  Wall. 

683,  6S4. 


332  RIGHTS    OF    APPROPRIATORS.  [§  219 

a  running  stream  to  the  benefit  to  be  derived  from  the  flow  of 
its  waters  as  a  natural  incident  to  or  one  of  the  elements  of 
his  estate,  and  that  it  cannot  be  lawfully  diverted  against  his 
consent  is  not  denied,  nor  does  the  controversy  relate  to  the 
just  and  reasonable  use  as  between  riparian  proprietors.  The 
question  raised  is  whether  Smith  occupied  the  position  of  a 
riparian  proprietor  or  a  prior  appropriator,  as  between  him- 
self and  Sturr,  when  the  latter  undertook  to  locate  his  alleged 
water  right.  At  that  time  Smith  had  been  in  possession  for 
three  years,  and  his  homestead  entry  had  been  made  over  a 
year. 

"A  claim  of  the  homestead  settler,  such  as  Smith's,  is 
initiated  by  an  entry  of  the  land,  which  is  effected  by  making 
an  application  at  the  proper  land  ofl&ce,  filing  the  affidavit 
and  paying  the  amounts  required  by  sections  2238  and  2290 
of  the  Revised  Statutes.  *  *  *  The  ruling  of  the  Land 
Department  has  been  that  if  the  homestead  settlers  shall  fully 
comply  with  the  law  as  to  continuous  residence  and  cultiva- 
tion the  settlement  defeats  all  claims  intervening  between  its 
date  and  the  date  of  filing  his  homestead  entry,  and  in  making 
final  proof  his  five  years  of  residence  and  cultivation  will 
commence  from  the  date  of  actual  settlement."  Then  after 
citing  section  2297  of  the  Revised  Statutes,  and  the  opinion 
of  Attorney  General  MacVeagh  upon  the  subject,  quoted 
above, ^  he  said:  "And  many  rulings  of  the  Interior  Depart- 
ment sustain  this  view.  These  official  utterances  are  entitled 
to  great  respect  at  the  hands  of  this  Court,  as  remarked  by 
Mr.  Justice  Lamar  in  Hastings  &  Dakota  R.  Co.  vs.  Whitney, 
132  U.  S.  357,  366."  And  upon  the  subject  of  entry  and 
settlement  of  the  land,  the  Court  endorsed  the  doctrine  as 
laid  down  in  Witherspoon  vs.  Duncan, ^  in  which  Mr.  Justice 
Davis,  speaking  for  the  Court,  said:  "  In  no  just  sense  can 
lands  be  said  to  be  public  lands  after  they  have  been  entered 
at  the  Land  Office  and  a  certificate  of  entry  obtained.  If 
public  lands  before  the  entry,  after  it  they  are  private  prop- 
erty. *  *  *  The  contract  of  purchase  is  complete  when 
the  certificate  of  entry  is  executed  and  delivered,  and  there- 

3  I  Land   Dec.  50;  Ante   Section  -4  Wall.  210,  218. 

216. 


§219]  RIGHTS    OF    Al'PROPRIATORS.  353 

after  the  land  ceases  to  be  a  part  of  the  public  domain.  The 
Government  agrees  to  make  proper  conveyance  as  soon  as  it 
can,  and  in  the  meantime  holds  the  naked  legal  tee  in  trust 
for  the  purchaser,  who  has  the  equitable  title.'  It  may  be 
said  that  this  language  refers  to  the  certificate  issued  on  final 
proofs,  but  if  the  word  '  entry  '  as  applied  to  the  appropria- 
tions of  land  means  that  act  by  which  an  individual  acquires 
an  inceptive  right  to  a  portion  of  the  unappropriated  soil  of 
the  country  by  filing  his  claim, ^  the  principle  has  a  wider 
scope.  *  *  *  And  as  to  the  mere  settlement  with  the 
intention  of  obtaining  title  under  the  pre-emption  laws,  while 
it  has  been  held  that  no  vested  right  in  the  land  as  against 
the  United  States  is  acquired  until  all  the  prerequisites  for 
the  acquisition  of  title  have  been  complied  with,  yet  rights  in 
parties  as  against  each  other  tvere  fully  recognized  as  ex/sling, 
based  iipon  priority  in  the  initiatory  steps  when  followed  np  to  a 
patent.  '  The  patent  which  is  afterwards  issued  relates  back  to 
the  date  of  the  initiatory  act,  and  cuts  off"  all  intervening 
claimants.'  "  ^ 

And,  after  quoting  and  commenting  upon  the  ninth  section 
of  the  Act  of  Congress  of  July  26th,  1866,  and  the  Act  of  July 
9th,  1870,  the  Court  continued:  "When,  however,  the  Gov- 
ernment ceases  to  be  the  sole  proprietor  the  right  of  the  ri- 
parian proprietor  attaches,  and  cannot  be  subsequently  in- 
vaded. As  the  riparian  owner  has  the  right  to  have  the 
water  flow  ut  cicrrere  solebat,  undiminished  except  by  reason- 
able consumption  of  upper  proprietors,  and  no  subsequent  at- 
tempt to  take  the  water  only  can  override  the  prior  appropria- 
tion 0/  both  land  and  water,  it  would  seem  reasonable  that  law- 
ful riparian  occupancy  with  intent  to  appropriate  the  land 
should  have  the  same  effect." 

And,  after  quoting  the  section  of  the  Dakota  statute  ap- 
plicable to  the  case,^  which  simply  recognizes  the  general 
right  of  appropriation  of  water  for  beneficial  purposes,  pro- 
vided it  does  not  interfere  with  a  prior  right  or  claim  to  such 

1  Citing    Chotard   vs.    Pope,     12  3l,evisec's   Dakota   Co:lcs,  Sec- 

Wheat.  586,  5S8.  ond  Ivlilion,  Sees.  255,  527,  650. 

2  Citing   Shepley  vs.   Cowan,  91 
U.  S.  330,  337. 


354  RIGHTS    OF    APPROPRIATORS.  [§  219,  220- 

waters,  the  Court  concluded  the  opinion  as  follows:  "  The 
local  custom  is  set  forth  in  the  findings  to  have  consisted  in 
the  recognition  and  acknowledgment  of  '  the  right  to  locate 
water  rights,  and  to  divert,  appropriate  and  use  the  waters  of 
flowing  streams  for  purposes  of  irrigation,  when  such  location, 
diversion  and  use  does  not  conflict  or  interfere  with  rights 
vested  and  accrued  prior  thereto.' 

"Thus  under  the  laws  of  Congress  and  the  Territory  and 
under  the  applicable  custom,  priority  of  possession  gave  pri- 
ority of  right.  The  question  is  not  as  to  the  extent  of  Smith's 
interest  in  the  homestead  as  against  the  Government,  but 
whether  as  against  Sturr  his  lawful  occupancy  under  settle- 
ment and  entrj'  was  not  a  prior  appropriation  which  Sturr 
could  not  displace.  We  have  no  doubt  it  was,  and  agree  with 
the  brief  and  comprehensive  opinion  of  the  Supreme  Court  to 
that  efiect. 

"The  judgment  is  affirmed.  "^ 

§220.  Same.— Concluding  Remarks  on  the  Subject.— The 

case  of  Sturr  vs.  Beck,  covering  as  it  does  so  completely  every 
point  under  discussion,  has  undoubtedh'  settled  the  law  upon 
this  formerly  troublesome  but  very  important  question.  It 
also  settles  the  law  that  there  are  in  certain  jurisdictions 
which  recognize  and  protect  the  common  law  theories  of 
riparian  rights  in  the  arid  region  two  distinct  water  systems 
— one  based  upon  a  possessory  right  by  the  mere  appropriation 
of  the  water  to  some  beneficial  use  or  purpose,  and  the  other 
based  upon  the  ownership  of  the  land  through  or  adjoining 
which  the  stream  flows.  This  also  settles  the  case  that  except 
in  those  States  and  Territories  which  have  enacted  statutory 
provisions  abolishing  what  is  known  as  the  common  law 
riparian  rights — the  effect  of  which  will  be  discussed  in  a  later 
portion  of  this  work — those  riparian  rights  vesting  by  rela- 
tion to  the  very  inception  of  the  patentee's  title  to  the  land 
will  be  protected  by  the  highest  judicial  tribunal  in  the  coun- 
try, as  against  all  subsequent  appropriation  of  water  naturally 
flowing  over  or  adjoining  the  land.     For,  as  Mr.  Chief  Justice 

1  See  late  case  of  Faul  vs.  Cooke,  ig  Oregon,  455;  26  Pac.  Rep.  662. 


§220,221]  RIGHTS    OF    APPROPRIATORS.  355 

Fuller  said  in  the  opinion  of  this  case,  "no  subsequent  attempt 
to  take  the  water  only  can  override  the  prior  appropriation  of 
both  land  and  water."  This  decision  settles  the  question 
regarding  a  tract  of  land  formerly  upon  the  public  domain  of 
the  United  States,  but  which  tract  was  duly  entered  under 
some  general  statute  of  Congress  by  some  bona  fide  settler, 
whose  entry  was  prosecuted  to  a  patent,  that  his  title  relates 
back  to  the  very  inception  of  his  acts  for  acquiring  it.  It  also 
settles  the  law  to  mean  that  if  the  settlement  is  made  prior  to 
an}"  appropriation  of  the  waters  of  the  stream  that  flows  over 
the  land,  all  appropriations  of  the  same  subsequent  to  that 
date  are  subject  to  the  riparian  rights  of  the  patentee  of  the 
land.  But,  upon  the  other  hand,  if  an  appropriation  of  the 
waters  of  the  stream  which  flow  over  or  adjoin  the  tract  of 
land  has  been  made  prior  to  the  date  of  settlement  or  entry  of 
the  patentee,  then  in  that  case  the  appropriator  has  the  prior 
right,  and  the  rights  of  the  patentee  as  riparian  owner  are 
subsequent  and  subject  to  the  rights  of  the  appropriator. 

With  respect  to  all  controversies  arising  which  involve 
claims  to  water  which  have  vested  since  the  Act  of  July  26, 
1866,  whether  those  controversies  arise  between  those  who 
claim  the  water  of  the  same  stream  by  appropriation  merely, 
or  between  those  who  claim  the  water  by  virtue  of  a  patent 
to  the  land  over  which  or  adjoining  which  the  stream  flows; 
or  controversies  arising  between  those  wlio  claim  the  water  by 
appropriation  and  those  who  claim  it  by  virtue  of  their  patent, 
the  law  is  now  settled  to  be  uniform  and  to  be  "  that  he  who 
has  the  prior,  has  the  superior  right."  ^ 

§  221.  Summar.v  of  Ciuipler. — The  conclusions  from  the 
foregoing  chapter  may  be  summed  up  as  follows:  First, 
respecting  controversies  as  to  rights  acquired  b>-  appropria- 
tors  to  the  waters  of  a  stream  flowing  over  the  public  domain 
against  other  appropriators,  he  has  the  best  right  who  is  first 
in  time,  to  the  extent  of  his  appropriation;  that  the  rights  of 
the  first  appropriator  are  fixed  by  the  extent  of  his  appropri- 
ation, and  that  others  may  appropriate  the  water  that  is  left 

1  As  to  controversies  of  rijjhUs  of       virtue  of  some  forei;,'ii  g:r.iiil  see 
those    vk^ho   claiTii    the   waters   by       Sees.  289-292. 


356  RIGHTS    OF    APPROPRIATORS.  [§  221 

flowing  in  the  stream,  provided  no  interference  with  the 
rights  of  the  first  or  injury  of  the  same  is  thereby  caused; 
that  there  is  no  difference  in  principle  between  appropriations 
measured  by  time  and  those  measured  by  volume.  Hence,  it 
follows  that  if  a  certain  portion  of  the  water  is  appropriated 
for  certain  days,  or  for  a  certain  time  of  the  day,  by  the  first 
appropriator,  others  following  may  not  only  appropriate  the 
surplus  in  whole  or  in  part,  but  may  also  use  the  quantity  of 
water  appropriated  by  the  first  at  such  times  as  it  is  not 
needed  and  used  by  him;  that  in  controversies  between 
appropriators  their  rights  relate  back  from  the  date  of  their 
perfected  appropriation  to  the  time  of  giving  notice,  or  to  the 
time  when  the  first  step  was  taken  to  make  the  appropriation; 
provided,  that  from  the  time  of  that  first  step  all  due  and 
reasonable  diligence  was  used  to  complete  the  appropriation 
which  must  culminate  in  the  application  of  all  the  water 
diverted  to  some  beneficial  use  or  purpose. 

Second,  in  all  controversies  regarding  the  rights  of  those 
who  claim  the  waters  of  streams  by  appropriation  merely,  as 
against  the  rights  of  a  Congressional  grantee,  the  appropri- 
ator of  the  waters,  if  he  is  first  in  time,  has  the  exclusive  right 
to  use  the  water  to  the  extent  of  his  appropriation;  but  that 
the  grantee  can  claim  the  riparian  rights  to  the  water,  if  he 
is  first  in  time,  in  those  jurisdictions  where  such  rights  are 
recognized;  that  the  rights  of  the  grantee,  where  the  grant  is 
made  by  an  act  of  Congress,  in  the  case  of  a  railroad  corpora- 
tion, relates  back  to  the  time  when  the  route  of  the  road  is 
"definitely  fixed,"  as  against  appropriators  of  water  subse- 
quent to  that  time;  but  that  prior  to  the  time  when  the  route 
is  "definitely  fixed"  the  waters  of  the  natural  streams  or  lakes 
upon  the  tract  granted  may  be  appropriated. 

Third,  as  between  those  claiming  the  land  by  virtue  of 
conflicting  grants,  priority  of  the  date  of  the  act  of  Congress, 
and  not  priority  of  the  location  of  the  line  of  the  road,  gives 
priority  of  title  to  the  land  and  all  the  incidents  thereto. 

Fourth,  in  all  controversies  between  the  rights  acquired  by 
the  appropriation  of  waters  upon  the  public  domain,  as  against 
the  riparian  rights  of  settlers,  in  the  arid  regions  as  in  other 
parts  of  the  country,  the  common   law  principles  of  riparian 


§221]  RIGHTS    OF    APPROPRIATORS.  3:)7 

rights,  in  several  jurisdictions,  still  exists  to  a  certain  extent. 
Prior  to  the  first  act  of  Congress  upon  the  subject,  on  the  26th 
of  July,  1 866,  there  was  no  statute  law  which  tended  in  any 
way  to  limit  the  rights  of  a  patentee  of  the  Government  to  the 
land  or  any  of  its  incidents.  The  appropriator  of  waters  upon 
those  lands  simply  held  their  title  to  the  same  by  virtue  of 
the  customs,  laws,  and  decisions  of  the  Court,  which  were 
ratified  and  confirmed  by  the  act  of  Congress  of  1866. 
Authorities  differ  upon  the  point  whether  priority  of  appro- 
priation gave  a  superior  right  as  against  a  patent  issued 
before  that  act,  but  the  later  decisions  hold  that  it  did  give 
such  a  right.  After  tbe  act  of  1866  there  is  no  question  upon 
the  point  that  where  a  person  acquires  any  title  to  the  land 
from  the  United  States,  and  prior  to  that  acquisition  of  title, 
the  whole  or  some  part  of  the  waters  of  a  stream  or  lake  run- 
ning through  or  adjoining  that  tract  of  land  had  been  appro- 
priated for  some  useful  purpose,  the  patentee  takes  the  title 
to  the  land  subject  to  the  rights  acquired  by  such  appropria- 
tion. In  all  controversies  as  to  their  respective  rights  between 
the  appropriator  of  water  and  a  patentee  of  the  land  through 
which  or  adjoining  which  the  stream  flows,  the  rights  of  the 
patentee  date,  by  the  doctrine  of  relation,  from  the  date  of 
the  patent  back  to  the  time  of  the  actual  settlement  upon  the 
land,  or  the  filing  of  the  preliminary  declaration — that  is  to 
say,  back  to  the  very  inception  of  the  patentee's  equitable 
title  to  the  land,  provided  he  has  strictly  complied  with  all 
the  requirements  of  the  law. 


CHAPTER  VIII. 


Nature  and  Extent  of  Rights  Acquired  to  Waters  in  the 
Arid  Region  by  Appropriators. 


222.  Extent  of  subject  treated  in 

chapter. 

T.    RIGHTS   ACQUIRED    BY   VIRTU K 

OF  AN  APPROPRIATION  OF  THE 

WATERS   OF   STREAMS   OR 

IvAKES. 

223.  What  is  a  water  right  ? 

224.  Property    in    ditches   and 

canals. 

225.  Amount  of  water  that  may  be 

diverted. 

226.  Same. — Authorities    dis- 

cussed. 

227.  Same. — Same. — Continued. 

228.  Other  authorities  on  point. 

229.  Same. — Continued. 

230.  How  extent  of  right  is  deter- 

mined. 

231.  Special  purpose   often  deter- 

mines extent. 

232.  Same. — Authorities    dis- 

cussed. 

233.  Change  of  use. 

234.  Same. — A  uthorities  con- 

tinued. 

235.  Amount  actually  needed  for 

purpose  of  appropriation. 

236.  Authorities  on  subject. 

237.  Same. — Continued. 

238.  Appropriator   not   limited  to 

first  amount  used. 

239.  Same. — Continued. 


I    Section.— 

240.  Theory  of  "  Equitable  Divis- 
i  ion"  of  water  controverted. 

241.  Same. — Basey  vs.  Gallagher, 

construed  on  suliject 

242.  Hillman  vs.  Hardwick  et  al. 

243.  Right  to  remove  obstructions 

from  stream  and  ditch. 

244.  Repair  of  ditches. 

245.  Injury  to  ditches  by  owner  of 

land. 

246.  Appropriator's   right   to    use 

natural   bed   of    stream    to 
convey  the  water. 

247.  Point  where  property  right  of 

appropriator  begins. 

248.  Point   of    diversion    may   be 

changed. 

249.  Right  to  natural  flow  of  wa- 

ter at  head  of  appropriator's 
ditch. 

250.  Pollution. 

251.  Same. — Aiithorities    on    sub- 

ject. 

252.  Same. — Continued. 

II.    DOCTRINE  OF  ABANDONMENT. 

253.  Doctrine  of  abandonment  in 

general. — Express  abandon- 
ment. 

254.  Express  abandonment  contin- 

ued.—  Implied    abandon- 
ment. 


§  222,  223]     NATURE  A>«'D  EXTENT  OF  RIGHTS. 


359 


255.  Implied    abandonment    con- 

tinued. 

256.  Abandonment  b\- adverse  pos- 

session. 

257.  Same. — When    abandonment 

presumed. 
25S.  Same. — Continued. 

259.  Effect  of  an  abandonment. 
III.    DOCTRINK   OF    ESTOPPEL. 

260.  Kstoppel  in  Pais,  as  applied 

to  water  rights. 

261.  Same. — Authorities    on   sub- 

ject. 

262.  Same. — Authorities  con- 

tinued. 


Section. — 

263.  Estoppel  by  deed. 

IV.    C  O  N  V  E  Y  .\  N  C  E     OF    WATER 
RIGHTS  AND  SALE  OK  WATER. 

264.  The   conveyance   of    w  a  t  e  r 

rights. 

265.  Same.— A  u  t  h  o  r  i  t  i  c  s   dis- 

cussed. 

266.  Sale  of  water  after  diversion. 

267.  Water  right  when  an  appur- 

tenant to  land. 

268.  Same. — Continued. 

269.  Same.— A  u  t  h  or  i  t  i  es    dis- 

cussed. 

270.  Colorado  rule. 


§  '222.  Extent  of  Suhjei-t  Treated  in  Chapter.— The  present 
chapter  will  treat  of  the  nature  and  extent  of  water  rights 
acquired  by  an  appropriator  b)'  virtue  of  his  appropriation  of 
the  waters  of  streams  or  lakes  flowing  over  the  public  lands 
of  the  United  States;  the  doctrines  of  abandonment  and 
estoppel,  as  the  same  are  construed  by  Courts  of  the  various 
States  and  Territories  in  the  arid  region;  also  the  appropria- 
tor's  right  of  conveyance  of  ditch  property  and  water  rights, 
and  also  his  right  to  sell  the  water  to  consumers  after  its  diver- 
sion. 

I.     Riijjhts  Acqnired  by  Virtne  of  an  Appropriation  of  the 
Waters  of  Streams  or  Lakes. 

§  '2'23.  Wliat  Is  a  Water  llia;ht  .'—Right  to  running  water, 
under  the  common  law,  is  defined  to  be  a  corporeal  right,  or 
hereditament,  which  follows  or  is  embraced  by  the  ownership 
of  the  soil  over  which  it  naturally  passes.^  Owing  to  the 
necessities  and  needs  of  the  settlers  and  miners,  growing  out 
of  the  peculiar  climatic  conditions  and  topographical  features 
in  the  arid  West,  the  common  law  rule  upon  this  subject  has 
been  modified,  and  the  right  to  running  water  exists  also  as 
a  corporeal  right,  without  private  ownership  of  the  soil  over 

1  Angell  on     Water    Courses,   Sections;    i    Crien loaf's    IM.    Criiise'» 
Digest,  39. 


360  NATURE   AND    EXTENT    OF    RIGHTS.  [§223 

which  it  naturally  runs  by  virtue  of  the  prior  appropriation 
of  the  water  of  the  natural  stream  to  some  beneficial  use  or 
purpose,  and  as  such  it  has  none  of  the  characteristics  of 
personalty,  but  is  a  species  of  realty.'  The  very  early  case 
in  California,  of  Hill  vs.  Newman, ^  has  been  followed  by  the 
later  authorities  upon  the  subject,  and  the  Court  in  that 
decision  said:  "From  the  policy  of  our  laws  it  has  been  held 
in  this  State  to  exist  without  private  ownership  of  the  soil, 
upon  the  ground  of  prior  location  upon  the  land,  or  prior 
appropriation  and  use  of  the  water.  The  right  to  water  must 
be  treated  in  this  State  as  it  has  alwaj's  been  treated,  as  a 
right  running  with  the  land,  and  as  a  corporeal  privilege 
bestowed  upon  the  occupier  or  appropriator  of  the  soil;  and 
as  such  has  none  of  the  characteristics  of  mere  personalty. 
It  therefore  follows  that  a  justice  of  the  peace  has  no  power 
conferred  upon  him  to  try  a  cause  where  there  is  an  alleged 
injury  arising  out  of  a  diversion  of  water  from  the  natural 
or  artificial  channel  in  which  it  is  conducted."  And  it  is 
also  held  that  it  is  only  when  water  is  collected  in  reser- 
voirs or  pipes  and  separated  from  the  original  source  of 
supply  that  it  is  personal  property  and  subject  to  sale  as 
an  article  of  commerce."  But  upon  the  question  of  trans- 
ferring the  right  to  water,  the  great  weight  of  authority 
holds  that  both  the  water-ditch  and  the  water-right  appur- 
tenant thereto  are  species  of  realty,  and  require  for  their 
valid  transfer  the  same  form  and  solemnity  as  is  necessary 
for  the  conveyance  of  any  other  real  estate.* 


1  Hill  vs.  Newman,    5  Cal.   445;  Barkley  vs.  Tieleke,   2  Mont.    59; 

Lux  vs.  Haggin,  69  Cal.  392;  Lake-  Smith  vs.  O'Hara,  43  Cal.  371. 

side  Ditch  Co.  vs.   Crane,   80  Cal.  25  Cal.  445. 

181;  Farmer's    High   Line   Canal  SHeyneman   vs.   Blake,    19  Cal. 

Co.  vs.  Southworth,    13  Cal.   iii;  578. 

Reno  Smelting  Works  vs.  Steven-  4  Barkley    vs.  Tieleke,  2  Mont, 

son,    20    Nev.     269;     Terrett    vs.  59;  Smith  vs.  O'Hara,  43  Cal.  371; 

Mahan,    20    Nev.    89;     Kidd    vs.  McDonald  vs.    B.    R.   M.    Co.,   13 

Laird,  15  Cal.  161;  Butte  T.  M.  Co.  Colo.  220;  Union  W.  Co.  vs.  Crary, 

vs.  Morgan,  19  Cal.    609;  Lick  vs.  25  Cal.  504;   Dalton  vs.  Bowker,  8 

Madden,    25    Cal.    209;    Hill     vs.  Nev.   190;   Farmer   vs.   Ukiah   W. 

Smith,  27  Cal.  476,   482;   Atchison  Co.,  56  Cal.  13;  Reed  vs.  Spicer,  27 

vs.  Peterson,    20   Wall.   507,    512;  Cal.  58;  3   Washburn,  Real  Prop- 


§224,  225]        NATURE  AND  EXTENT  OF  RIGHTS.  361 

§  224.  Property  in  Ditches  and  (l;iiials.— A  ditch  used 
for  the  conveyance  of  water  for  any  beneficial  purpose  is 
not  a  mere  easement,  neither  is  it  a  corporeal  or  an  incor- 
poreal hereditament  appurtenant  to  land.    It  is  itself  land.^ 

The  Supreme  Court  of  California,  in  the  case  of  Reed  vs. 
Spicer,2  27  Cal.  58,  held:  That  a  deed  in  which  there  were 
two  independent  descriptions  of  the  interest  intended  to  be 
conveyed,  first  by  name — "a  way  to,  in,  and  for  the  ditch, 
called  Mountain  Brow  Water  Company;"  second,  by  indi- 
cating the  land  which  the  way  crosses,  viz,  "land  owned  by 
Spicer,"  conveyed  a  right  of  way.  And  the  Court  in  the 
opinion  said:  "Substantially  the  conveyance  was  of  the  ditch, 
for  there  can  be  no  distinction  taken  between  'a  right  of  way 
in  a  ditch'  or  'for'  an  existing  ditch  and  the  ditch  itself." 

It  follows  from  the  above  that  there  is  a  distinction  be- 
tween the  right  to  the  water  appropriated  from  a  natural 
stream  and  this  right  to  the  canal,  ditch,  or  other  structure, 
by  means  of  which  the  water  is  diverted  from  the  stream 
and  conveyed  to  the  place  where  it  is  to  be  used.  And  the 
difference  consists  in  simply  the  difference  between  a  cor- 
poreal hereditament  to  land,'^  and  the  land  itself."*  The 
right  of  a  prior  appropriator  to  have  the  water  flow  in  the 
river  or  stream  to  the  head  of  his  ditch  is  an  vicorporcal 
hereditament,  appurtenant  to  the  ditch,  and  the  appropriators' 
rights  to  the  water  diverted  thereby.'' 

§  225.  Amount  of  Water  That  May  Be  Uivertecl.— The 

first  appropriator  from  a  stream  upon  the  public  domain  is  en- 
titled to  use  and  enjoy   the 'water  to  the  full  extent  of  his 

erty,  4th  Edition,  marginal  page  those  which  lie  in  livc-ry,  and  con- 
627;  Hill  vs.  Newman,  5  Cal.  445.  sist  of  those  which  are  suhslanlial 
As  to  when  water  itself  becomes  and  permanent,  visible  and  tan- 
personal  property  see  Parks.  C.  gible.  9  Am.  &  luig.  Ivnc.of  Law. 
M.  Co.  vs.  Hoyt,  57  Cal.  46.  359;    2    lilackstonc's    Com.    17;    3 

iReed    vs.    Spicer,    27   Cal.    57;  Kent   Com.   401;    Williams    Real 

Clark   vs.    Willett,    35    Cal.    534;  Property,  10;  Rex    vs.   Trustee,  3 

Hunt  vs.  Plum,  14  Cal.    148;  Mcr-  ILand  A<1.  216. 

ritt  vs.  Judd,  14  Cal.  59;  Burnham  ^  vSee   Hill    vs.    Newman,  5  Cal. 

vs.  Freeman,  11  Colo.  601.  445. 

227  Cal.  58.  ^  Lower  Kiii;,'s  R.  W.  D.  Co.  vs. 

3  Corporeal    heredilaments    are  Kinj^^s  R.  etc.  Co.  ^o  Cal.  40K. 


362  NATURE  AND  EXTENT  OF  RIGHTS.  [§  225 

original  appropriation,  even  when  this  includes  all  the  water 
of  the  stream  all  of  the  time,  provided  that  all  that  is  diverted 
is  continually  applied  to  some  useful  or  beneficial  purpose.^ 
This,  of  course,  is  only  the  case  as  between  appropriators,  and 
does  not  apply  where  title  to  the  land  through  or  adjoining 
which  the  stream  runs  was  obtained  prior  to  his  appropriation 
in  those  jurisdictions  which  recognize  and  protect  the  com- 
mon law  riparian  rights.  By  the  term  "  to  the  full  extent  of 
his  original  appropriation  ' '  is  meant  the  full  amount  of  water 
he  is  entitled  to  take  out  when  his  appropriation  is  entirely 
complete.  It  does  not  mean  that  his  rights  will  be  limited 
simpl}^  to  the  partial  amount  of  his  appropriation  that  he  may 
have  taken  out  of  the  stream  while  his  works  are  in  the  course 
of  construction,  provided  he  prosecuted  their  construction 
with  all  due  and  reasonable  diligence  'Until  completed.  And 
as  to  what  constitutes  all  due  and  reasonable  diligence  in  re- 
ducing a  claim  of  water  to  possession  and  ownership  is  a 
question  dependent  on  the  facts  and  circumstances  shown  to 
exist  in  each  particular  case.- 

A  great  many  of  our  western  streams  become  nearly  dr)^  in 
the  summer,  just  when  the  water  is  most  needed  for  irri- 
gation. And  so  if  a  certain  stream  in  the  spring-time  has  a 
flow  of  five  hundred  inches  and  in  the  summer-time  the  flow 
is  reduced  to  one  hundred  inches  or  less,  and  A  as  the  first 
appropriator  upon  the  stream  has  legally  completed  his  ap- 
propriation of  two  hundred  and  fift}'  inches,  the  capacity  of 
his  ditch  and  the  amount  that  he  actuall}^  uses  for  the  purpose 
for  which  he  made  the  appropriation,  he  is  entitled  as  re- 
gards all  subsequent  claimants  to  the  water  either  above  or 
below  him  on  the  stream  to  all  of  the  water  that  flows  in  it 
during  the  period  that   it   is   equal  to  two  hundred  and  fifty 


1  Lobdell   vs.  Sinipsou,    2   Nev.  2park    vs.    Kilham,    8   Cal.    77; 

274;  Ophir   Silver   Mining  Co.  vs.  Weaver   vs.   The   Eureka   Co.,   15 

Carpenter,  4  Nev.  543;  Barnes  vs.  Cal.  271;   Lockhart  vs.   Ogden,  30 

Sabron,     10    Nev.      217;     Nevada  Cal.  547;    Kimball  vs.    Gearheart, 

Water  Co.  vs.  Powell,  34  Cal.  109;  12  Cal.  30;  White  vs.  Todds  Val- 

Gale  vs.  Tuolumne  Water  Co.,   14  ley  Water   Co.,   8    Cal.    444;    see 

Cal.   25;    Sims   vs.    vSmith,    7    Cal.  Ante  Chapter  "VI.,    Sections   164, 

148.  165. 


^225,226]         NATURE  AND  EXTENT  OF  RKJHTS. 


:J(j:j 


inches  or  less,  although  he  entirely  shuts  off  the  supply  of 
the  subsequent  appropriators.  This  may  seem  a  selfish  rule 
to  one  who  is  acquainted  with  only  the  principles  of  the  com- 
mon law  upon  the  subject,  but  it  is  based  upon  the  general  and 
uniform  principle  applicable  to  all  claims  by  appropriation  to 
waters  upon  the  public  domain  of  the  arid  west  that  "  he  who 
has  the  prior  has  the  superior  right."  ' 

Under  this  principle  the  general  doctrine  is  settled  by  a  long 
line  of  authorities  that  the  prior  appropriator  is  entitled  to  the 
exclusive  use  of  the  water  up  to  the  amount  embraced  in  his 
appropriation  either  for  the  original  purpose  for  which  he  in- 
tended to  apply  the  water  or  for  any  different  purpose,  provided 
the  amount  originally  appropriated  is  not  thereby  increased, 
and  that  he  in  no  way  diminishes  or  materially  alters  the 
quality  or  quantity  of  the  water  legally  appropriated  by  sub- 
sequent parties. - 

§  22iy.  Ssiine.— Authorities  Discussed.— In  the  very  recent 
case  of  Drake  vs.  Earhart,^  decided  by  the  Supreme  Court  of 
Idaho,  the  facts  were  that  the  plaintiff's  grantor  in  1879  ap- 
propriated the  water  of  a  certain  small  stream  and  diverted 
for  the  purpose  of  irrigation  all  the  water  flowing  therein; 
that  said  plaintiff's  grantor  claimed  six  hundred  inches  of  the 
water  of  the  stream,  which  actually  carried  only  one  hundred 
and  fifty  inches;  that  all  the  waters  of  the  stream  were  required 

1  However,    priority    of    appro-  Fletcher,     23    Cal.     4S2;    Natonia 

priation  by  a  riparian  owner  does  Water  Co.  vs.  McCoy,  23  Cal.  490; 

not   give    an    exclusive    right    if  Butte,    etc.,    Co.    vs.    Morgan,   19 

other  parties  have   located   upon  Cal.  609;  Kidd    vs.    Laird,  15  Cal. 

the  stream  prior  to  the  appropria-  161;  Kimball  vs.  Gearhart,  12  Cal. 

tion.     See    Po.st   vSections  181-183.  27;  Ortman   vs.  Dixon,    13  Cal.  33; 

SHimes  vs.  Johnson,  61  Cal.  259;  Hear  River,  etc.,  Co.  vs.  New  York 

Stein  Canal  Co.  vs.  Kern  Island  I.  M.  Co.,  8  Cal.  327;()phir  Silver  M. 

C.  Co.,   53   Cal.  563;  Reynolds  vs.  Co.    vs.    Carpenter,    4    Nev.    534; 

Hosmer,  51  Cal.  205;   Gregory  vs.  Barnes   vs    Sal)ron,    10   Nev.  217; 

Nelson,  41  Cal.  278;  Clark  vs.  Wil-  Strait    vs.     Brown,    16    Nev.    317; 

lett,  35  Cal.  534;  Davis  vs.  Gale,  32  Atchison   vs.    I'eterson,    20  Wall. 

Cal.  26;   McDonald   vs.  Askew,  29  515;   (iould    on    Waters,  Sec.  229; 

Cal.  200;    Hill   vs.  Smith,    27  Cal.  Alhambra  A.  \V.  Co.   vs.  Richnrd- 

476,  32  Cal.  166;  Rupley  vs.  Welch,  son,  95    Cal.  49(j;  30  Rac.  Rep.  577. 

23    Cal.  453;    Phoenix    W .    Co.   vs.  •<  23  I'ac.  Riji.  541. 


364  NATURE  AND  EXTENT  OF  RIGHTS.  [§  226 

for  the  irrigation  of  the  lands  of  the  plaintiffs  who  had  suc- 
ceeded to  the  original  appropriator's  rights.  The  defendant 
purchased  his  land  in  1885,  which  had  been  acquired  by  his 
grantor  in  May,  1883.  The  lands  of  the  defendant  were  upon 
the  stream  higher  up,  and  he  commenced  the  use  of  the  water 
of  the  stream  by  diverting  it  upon  his  lands.  The  plaintiff 
brought  an  action  to  perpetuall}'  restrain  defendant  from  such 
use,  and  in  the  trial  court  the  right  to  all  the  water  was  ad- 
judged to  the  plaintiff  and  the  defendant  was  restrained.  The 
case  was  then  appealed  to  the  Supreme  Court,  which  affirmed 
the  judgment.  Chief  Justice  Beatty,  in  rendering  the  opinion, 
said:  "  The  important  question  for  the  settlement  of  which 
this  appeal  was  chiefly  brought  is  what,  if  any,  rights  the  ap- 
pellant has  to  any  of  that  water  as  a  riparian  proprietor.  His 
claim  is  not  based  upon  any  prior  appropriation  under  our 
Territorial  laws,  but  upon  the  fact  that  the  stream  in  question 
flows  b}^  its  natural  channel  through  his  land;  hence  that  he 
is  entitled  to  the  use  thereof  allowed  by  the  common  law. 
This  doctrine  of  riparian  proprietorship  in  water  as  against 
prior  appropriation  has  been  very  often  discussed,  and  nearly 
always  decided  the  same  way  by  almost  every  appellate 
Court  between  Mexico  and  the  British  possessions,  and  from 
the  shores  of  the  Pacific  to  the  eastern  slope  of  the  Rocky 
Mountains,  as  well  as  by  the  Supreme  Court  of  the  United 
States.  But  for  the  fact  that  it  has  elsewhere  appeared  in  the 
same  court  it  would  seem  surprising  that  it  should  now  be 
seeking  another  solution  in  this.  While  there  are  questions 
growing  out  of  the  water  laws  not  fully  adjudicated,  this 
phantom  of  riparian  rights,  based  upon  facts  like  those  in  this 
case,  has  been  so  often  decided  adversely  to  such  claim  and 
in  favor  of  the  prior  appropriator  that  the  maxim,  'first  in 
time,  first  in  right,'  should  be  considered  the  settled  law  here. 
Whether  or  not  it  is  a  beneficent  rule,  it  is  the  lineal  descend- 
ant of  the  law  of  necessity." 

And  in  commenting  upon  certain  construction  of  the  opinion 
by  the  Supreme  Court  in  the  case  of  Base}-  vs.  Gallagher,^ 
the  Court  said:      "  In  this  case  it  is  said:     '  The  right  of  the 

1  20  Wall.  681, 543. 


§226,227]       NATURE  AND  EXTENT  OF  RIGHTS.  305 

first  appropriator,  exercised  within  reasonable  limits,  is  re- 
spected; '  that  it  '  is  not  unrestricted.  It  must  be  exercised 
with  reference  to  the  general  condition  of  the  country  and  the 
necessities  of  the  people.'  This  language  has  been  seized 
upon  as  justifying  the  equitable,  if  not  equal,  division  of  the 
water  among  all  desiring  or  needing  it,  regardless  of  the  claim 
of  the  prior  appropriator.  Such  a  construction  is  not  justified, 
and  would  make  the  decision  inconsistent  with  itself  as  well 
as  with  the  other  decisions  of  the  same  court.  Jennison  vs. 
Kirk,  98  U.  S.  461;  Broder  vs.  Water  Co.,  loi  U.  S.  276.  It 
is  evident  that  all  the  Court  means  by  this  language  is  that 
the  first  appropriator  shall  not  be  allowed  more  than  he  needs 
for  some  useful  purpose;  that  he  shall  not,  by  wasting  or  mis- 
using it,  deprive  his  neighbor  of  what  he  has  not  actual  use 
for.  In  98  U.  S.  461,  supra,  the  Court  says:  '  The  owners 
of  a  mining  claim  and  the  owner  of  a  water  right  enjoy  their 
respective  properties  from  the  dates  of  their  appropriation — 
the  first  in  time  being  the  first  in  right;  but  when  both 
rights  can  be  enjoyed  without  interference  with  or  material 
impairment  of  each  other  the  enjoyment  of  both  is  allowed.' 
It  clearly  follows,  as  the  Courts  have  certainly  held,  that 
when  all  cannot  use  the  water  without  injury  to  the  prior  ap- 
propriator the  other  must  yield  to  his  superior  right." 

Also  in  the  case  of  Malad  Valley  Irr.  Co.  vs.  CainpbelP 
the  Supreme  Court  of  Idaho  also  held  that  rights  cannot  be 
acquired  to  the  waters  of  springs  situated  along  the  channel 
of  a  stream,  which  springs  constitute  its  direct  source  of  sup- 
ply, as  against  prior  appropriations  in  good  faith  of  the  whole 
of  the  waters  of  the  stream;  as  to  allow  that  to  be  done  would 
disturb  substantial  vested  rights,  which  the  law  would  not 
permit. 

§  227.  Same.— Same.— Conliiiued.— The  Supreme  Court  of 
Nevada  seems  to  have  had  considerable  difficulty  upon  the  ques- 
tion as  to  whether  all  of  the  water  of  a  stream  can  be  diverted 
by  the  prior  appropriator,  if  it  is  all  necessary  for  his  use,  and 
within    the    extent  of   the   original    appropriation.      In    the 

1  18  I'ac.  Rep  52. 


366  NATURE  AND  EXTENT  OF  RIGHTS.  [§  227 

opinion  of  Vansickle  vs.  Haines,^  which  is  a  decision  that 
was  almost  universally^  cited  as  authority  as  to  most  of  its 
holdings,  the  Court  said:  "  When  it  is  said  that  a  proprietor 
has  the  right  to  have  the  stream  continue  through  his  land, 
it  is  not  intended  to  be  said  that  he  has  the  right  to  all  the 
water,  for  that  would  render  the  stream,  which  belongs  to  all 
the  proprietors,  of  no  use  to  any.  What  is  meant  is,  that 
710  one  can  absolutely  divert  the  lahole  stream,  but  must  use  it 
in  such  a  manner  as  not  to  injure  those  below  him."  This 
latter  sentence  was  taken  to  refer  to  those  claiming  the  water 
by  prior  appropriation,  as  well  as  those  who  claimed  it  by 
virtue  of  their  riparian  rights.-  By  taking  the  whole  con- 
text of  the  opinion,  that  would  seem  undoubtedly  to  be  what 
the  Court  intended  to  conve}^,  but  the  later  rulings  of  the 
same  Court  do  not  hold  to  that  opinion.  In  fact  the  case  of 
Vansickle  vs.  Haines,  supra,  was  decided  upon  an  entirely 
different  principle.  It  was  upon  the  principle  that  a  prior 
appropriator  of  water  of  a  stream  obtained  no  right  what- 
ever against  the  Government  or  its  grantee,  before  any  Act 
of  Congress  limiting  the  grant.  And  in  the  case  of  Barnes 
vs.  Sabron,-^  the  same  Court  held,  that  the  first  appropriator 
of  the  waters  of  a  small  stream  has  a  right  to  insist  that  the 
waters  flowing  therein  shall,  during  the  irrigating  season,  be 
subject  to  his  reasonable  use  and  enjoyment  to  the  full  extent 
of  his  original  appropriation  and  beneficial  use.  To  this 
extent  his  rights  go,  but  no  further;  for  in  subordination  to 
such  rights  all  subsequent  appropriations,  in  the  order  and 
to  the  extent  of  their  original  appropriation  and  use,  have 
the  unquestionable  right  to  the  remainder  of  the  water  run- 
ning in  the  stream."*  This  holding  is  entirely  contrary  to  the 
construction  of  the  part  of  the  opinion  quoted  above  in  the 
case  of  Vansickle  vs.  Haines,  and  later  the  decision  in 
that  case  was  overruled  by  that  Court  in  the  case  of  Jones  vs. 
Adams. ^     And  still  later,  in   April  of  1889,  the  same   Court, 

1  7  Nev.  249,  286.  Co.  vs.  Vaughn,  11   Cal.    143;  The 

2  See    II    Am.    &  Eng.   Enc.    of       Nevada   Water  Co.  vs.  Powell  et 
Law  854,  Note  2.  al.,  34  Cal.  109; 

3  10  Nev.  217.  •''  19  Nev.  78,  6  Pac.  Rep.  442. 
•»  Citing   Butte   Canal    &    Ditch 


§  227,  228]       NATURE  AND  EXTENT  OF  RIGHTS.  307 

in  the  case  of  Reno  Smelting  &  Milling,  etc.  Co.  vs.  Steven- 
son, ^  affirmed  the  decision  in  Jones  vs.  Adams,  supra.  So  in 
that  State  it  is  now  settled  that  the  first  appropriator  of  the 
water  of  a  stream  is  entitled  to  the  enjoyment  of  the  water  to 
the  full  extent  of  his  original  appropriation,  even  when  it 
includes  all  the  water  of  the  stream. 


§  228.  Other  Autliorities  on  the  Point.— In  Colorado  it 
is  held  that  the  first  appropriator  of  water  from  a  natural 
stream  for  a  beneficial  purpose  has  a  prior  right  thereto,  to 
the  extent  of  such  appropriation,  and  this  right  is  entitled  to 
protection  as  well  after  a  patent  has  been  given  to  a  party  of 
the  land  over  which  the  natural  stream  flows,  as  when  such 
land  is  a  part  of  the  public  donjain.-  In  Schilling  vs.  Rom- 
inger,-"^  the  Court  said:  "That  the  first  appropriator  of  the 
water  of  a  natural  stream  has  a  prior  right  to  such  water,  to  the 
extent  of  his  appropriation,  is  a  doctrine  that  we  must  hold 
applicable  in  all  cases  respecting  the  diversion  of  water  for 
the  purpose  of  irrigation.  Hence,  the  prior  appropriation  of 
the  water  of  Major  Creek  by  Schilling,  by  the  construction 
of  the  ditch  for  the  irrigation  of  his  land,  secured  to  him  a 
prior  right  to  the  use  of  such  water  to  the  extent  of  such 
appropriation.^  It  is  also  settled  in  Colorado,  that  no  mere 
diversion  of  water  from  a  stream  is  entitled  to  protection  as 
against  others  coming  after.  To  make  it  such  it  must  be 
actuall}^  applied  to  some  beneficial  use  before  the  appropria- 
tion is  complete." 

In  the  case  of  Geddis  vs.  Parrish,  decided  by  the  SuprcuK- 


1  2o  Nev.  269.  Ditch    Co.,    17   Colo.    146;    2S    I'ac. 

2  Hamniond  vs.  Rose,   11   Colo.  Rep.  966; 

524;    16  Pac.    Rep.  466;   Coffin  vs.  ■''  Schilliiijj  vs.  Roiiiinj^jer,  4  Colo. 

Ditch  Co.,  6   Colo.   443;  Schilliiifi  100;  Thomas    vs.  Guiraud,  6   Colo 

vs.  Rominger,  4  Colo.  103;  533;  Sieher  vs.  Frink,  7  Colo.  149; 

3  4  Colo.  103.  Wheeler   vs.   Northern    Colo.    Ir. 
■1  See  Fanners  High  Line  Canal  Co.,  10  Colo.    582;   I""arniers   H.  L. 

Co.  vs.  Southworth,   13  Colo,    in;  Canal    vs.    Southworlli,    13   Colo. 

4  L.  R.  A.  767;  Thomas  vs.  Ouiraiid,  m;   4    \,.    R.    A.   761;    Conilis  vs. 

6    Colo.    533;    Combs    vs.    Agric.  Agri.  Ditch   Co.,    17  Colo.    146;   28 

Pac.  Rf)).  </)6. 


368         NATURE  AND  EXTENT  OF  RIGHTS.       [§  228 

Court  of  Washington/  the  Court  held  that  the  prior  appro- 
priator  of  the  waters  of  a  spring  upon  lands  that  were  after- 
wards patented  to  another  had  a  right  to  the  waters  of  the 
spring,  and  that  the  owner  of  the  land  would  have  no  more 
right  to  place  an  obstruction  in  the  stream  leading  from  the 
spring  upon  his  own  land  than  he  would  have  upon  the  land 
of  another.  And  after  discussing  the  rights  of  riparian 
owners,  the  Court  said:  "  But  an  appropriator  of  water  may 
acquire  rights  superior  to  a  fee  subsequently  acquired  from 
the  Government,  as  is  recognized  by  Act  of  Congress  of  July 
26th,  1866,  although  the  waters  run  over  and  along  the  lands 
thus  subsequently  acquired.  In  such  cases  the  subsequently 
acquired  title  must  be  considered  as  taken  with  notice  of  the 
prior  appropriation.  A  vested  right  having  been  acquired  in 
land,  or  a  complete  title,  carries  with  it  a  right  to  the  water 
as  above  stated,  unless  a  prior  appropriation  of  the  water  or 
right  upon  or  over  such  land  has  taken  precedence  of  such 
vested  right  or  title,  as  illustrated  fully  in  Ellis  vs.  Improve- 
ment Co.  Such  use  must  be  had  by  the  owner  upon  whose 
lands  water  runs,  where  a  right  by  prior  appropriation  has 
vested,  as  not  to  materially  affect  the  prior  appropriator  below 
him.  He  takes  subject  to  such  right  and  with  notice  of  it. 
While,  therefore,  a  reasonable  use  of  the  water  by  him  would 
be  sustained,  if  the  water  is  thereafter  allowed  to  flow  into 
the  head  of  the  prior  appropriator's  ditch,  yet  under  the  cloak 
of  such  use,  or  even  for  actual  irrigation,  he  can  not  hold  or 
materially  divert  the  water  course  so  as  to  deprive  or  injure 
others  below  him  who  were  prior  in  point  of  use."  And  con- 
cluding the  opinion  the  Court  said:  "  The  obstruction  of  the 
course  and  the  diversion  of  the  stream  is  thus  wrong,  and  it 
matters  little  where  or  upon  whose  land  it  occurs."  ^ 

In  Hill  vs.  I,eonardman,^  the  Supreme  Court  of  Ari- 
zona held  that  the  right  acquired  by  prior  appropria- 
tors  could  not  be  interfered  with  by  a  subsequent  patentee 
of  the  land  through  or  adjoining  which  the  stream 
ran  ;  although  in  that  Territory  the  rights  of  riparian 
owners  were  recognized  whenever  they  were  applicable,   and 

1  I  Wash.  St.  587;  21  Pac.  Rep.  314.       i  Wash.  572;  21  Pac.  Rep.,  27. 

2  See  Ellis  vs.  Improvement  Co.,  3  16  Pac.  Rep.  266. 


§228,229]       NATURE  AND  EXTENT  OF  RIGHTS.  3G9 

the  Court  said  :  "  Riparian  rights  are  the  same  here  as  else- 
where wherever  they  apply  ;  but  they  do  not  apply  where  the 
rights  of  prior  appropriators  have  intervened.  As  is  very 
generally  the  case,  in  the  Pacific  States  and  Territories,  the 
conditions  are  so  changed  that  riparian  rights  do  not  attach. 
In  the  case  at  bar  riparian  rights  do  not  apply.  Here  the 
defendants,  six  or  seven  years  subsequent  to  the  appropriation 
of  plaintiffs,  bought  the  lands  about  two  miles  above  plaintifTs, 
on  both  sides  of  the  San  Pedro  river,  and  sought  the  usufruct 
of  the  water  thereof,  diverting  the  same  by  means  of  a  dam, 
ditch,  etc.,  thereby  interfering  with  the  vested  rights  of 
plaintiffs  as  prior  appropriators.  Plaintiffs  as  prior  appropria- 
tors had  acquired  vested  rights  in  these  waters,  and  the  pur- 
chase and  ownership  of  the  lands  on  both  sides  of  San  Pedro 
river  above  plaintiff's  did  not  divest  these  rights.  " 

From  these  authorities  it  is  apparent  that  the  rule  in  the 
arid  region  is  settled  that  a  prior  appropriator  can  take  the 
waters  of  a  stream  to  the  full  extent  of  his  original  completed 
appropriation,  and  others  claiming  an  appropriation  in  the 
waters  subsequent  to  the  first  appropriation  can  not  divest  the 
first  of  his  rights,  even  if  the  first  diverts  all  the  water  of  the 
stream,  provided  he  applies  it  all  to  some  beneficial  use  or 
purpose. 

§  229.  Same. — Coiitiiiueil. — In  the  case  of  South  Yuba 
Water  and  M.  Co.  vs  Rosa^  the  Supreme  Court  of  California 
held  that  the  rights  of  a  homestead  claimant  are  subject  and 
subordinate  to  the  prior  appropriation  when  his  settlement 
upon  the  land  is  subsequent  to  an  appropriation  of  the  water 
flowing  in  its  natural  channel  across  the  same  by  the  owners 
of  a  water  ditch  which  taps  the  stream  below  the  homestead 
claim,  and  that  a  perpetual  injunction  would  lie  against  the 
settler  for  a  diversion  by  him  of  the  water.  In  the  case  of 
De  Necochea  vs.  Curtis -it  was  held  that  under  the  Act  of 
Congress  of  July  26th,  1866,  a  prior  appropriator  of  all  the 
waters  of  a  spring,  who  diverted  it  from  its  natural  course  by 
means  of  a  completed  ditch  prior  to  the  vesting  of  any  rights 
by  a  subsequent  pre-emption  of  the  land  over  whicli  the  water 

1  80  Cal.  333;  22  Pac.  Rep.  222.    2 80  Cal.  397;  20  Pac.  Rep.  563. 


370  NATURE  AND  EXTENT  OF  RIGHTS.        [§229,230 

of  the  spring  would  naturally  flow,  is  protected  to  the  extent 
and  in  the  manner  of  such  actual  and  completed  diversion 
which  included,  in  that  case,  all  of  the  waters  from  the  spring. 
In  the  case  of  Hill  vs.  Lenormand  et  al.,^  decided  by  the 
Supreme  Court  of  Arizona  January  12th,  1888,  the  facts  were 
that  the  defendants  six  years  subsequent  to  an  appropriation 
of  the  plaintiffs  bought  lands  about  two  miles  above  plaintiffs, 
on  both  sides  of  the  stream  and  diverted  the  waters  of  the 
stream,  thereby  interfering  with  the  rights  of  the  plaintiffs  as 
prior  appropriators.  The  trial  Court  granted  an  injunction 
to  the  plaintiffs  against  the  defendants,  and  the  Supreme 
Court  upon  appeal  held  that  plaintiffs  as  prior  appropriators 
had  acquired  vested  rights  in  the  waters  of  the  stream,  and 
the  purchase  and  ownership  of  the  lands  on  both  sides  of  the 
stream  above  plaintiffs  did  not  divert  those  rights  from  them; 
and  in  concluding  the  Court  said:  "  The  Court  found  that  the 
quantit}'  of  water  appropriated  by  plaintiffs  (as  hereinbefore 
indicated)  was  for  long  times  continuous,  necessary  for  their 
reduction  works  and  for  irrigating  their  lands;  and  thereupon 
enjoined  defendants  from  interfering  wdth  said  quantity  of 
water  at  times  when  the  same  was  necessary  for  plaintiff's 
use  as  aforesaid. 

"We  think  the  judgment  of  the  Count}'  Court  ought  to  be 
aflBrmed,  and  it  is  so  ordered." 

From  these  authorities  there  can  be  no  question  but  that  it 
is  the  law  that  the  rights  of  the  first  appropriators  will  be 
respected  if  the  same  are  exercised  within  the  extent  of  the 
original  appropriation  and  all  the  water  used  for  some  bene- 
ficial purpose. 

§230.  How   Extent  of  Right  Acquired  is   Determined. 

— In  the  beginning  of  this  discussion  it  was  stated  that  the 
first  appropriator  is  entitled  to  the  use  and  enjoyment  of  the 
water  to  the  full  extent  of  his  original  appropriation.  It  now 
becomes  necessary  to  ascertain  by  what  method  and  upon 
what  basis  the  extent  of  the  appropriator's  rights  are  deter- 
mined. The  earliest  authorities  held  that  he  was  entitled  to 
have  the  water  of  the  stream  flowing  down  to  the  head  of  his 

1 16  Pac.  Rep.  266. 


§  230]  NATURE  AND  EXTENT  OF  RIGHTS.  371 

ditch  undiminished  in  quantity,  so  as  to  leave  when  the  subse- 
quent locations  were  made  above  him  sufficient  water  to  fill 
his  ditch  to  its  full  capacity  at  its  smallest  point. ^  Or.  as  the 
rule  is  stated  in  the  case  of  Bear  River,  etc.,  Co.  vs.  New 
York  M.  Co.,  cited  above,  "  He  is  entitled  to  the  water,  so 
undiminished  in  quantity,  as  to  leave  sufficient  to  fill  his 
ditch  as  it  existed  at  the  time  the  locations  were  made  above. 
His  right  is  essential  to  the  protection  of  the  ditch  owners. 
If  we  lay  down  the  rule  that  the  subsequent  locators  above 
may  so  use  the  water  as  to  diminish  the  quantity  it  would  be 
difficult  to  set  any  practical  limit  to  such  diminution,  and  the 
ditch  property  might  be  rendered  entirely  useless." 

The  rule  is  still  that  the  greatest  qicantity  of  water  that  can 
be  diverted  by  the  prior  appropriator,  if  the  rights  of  others 
have  attached  to  the  waters  of  the  stream  subsequent  to  those 
of  the  first,  is  to  be  measured  by  the  capacity  of  the  ditch  or 
flume  at  its  smallest  point;  that  is,  at  the  point  where  the  least 
water  can  be  carried  through  it.^  The  capacity  of  the  appro- 
priator's  ditch  may  be  called  the  maximum  amount  of  water 
than  he  can  divert  by  virtue  of  his  appropriation.  He  is  lim- 
ited to  that  amount  and,  in  subordination  to  his  prior  right 
thus  limited,  others  may  appropriate  the  remainder  of  the 
water  running  in  the  stream.-^    And  after  the  rights  of  others 

iRear  River,  etc.,  Co.  vs.  New  mere  showing   of   the  witUh  and 

York  M.  Co.,  8  Cal.  327;  Hill  vs.  depth  of  the  ditch,  but  the  veloc- 

King,  8  Cal.  339.  it}'  of  the  flow  must  be  shown. 

2  Atchison  vs.  Peterson,  20  Wall.  Last     Chance     W.    D.    Co.   vs. 

507;  Higgins   vs.  Barker,  42   Cal.  Heilbron,  86  Cal.   i;  26  Pac.  Rep 

233-  623. 

Ophir  Mining  Co.  vs.  Carpenter,  •*  Butte  Canal  Co.  vs.  Vaughn,  11 

6  Nev.  393,  where  it  was  held  that  Cal.   143,  where  it  was  lield  that 

the    quantity   of   water  appropri-  the  first  appropriator  of  the  water 

ated   in   any  given   case  is  to  be  of  a  stream  passing  througli  the 

measured  by  the  capacity  of  the  public  lands  in  the  vState  has  the 

ditch    or    flume    at   the   smallest  right  to  insist  that  the  water  sliall 

point,  that  is,  at  the  point  where  be  subject  to  his  use  and  enjoy- 

the   least  water  can  be  conveyed  ment  to  the  extent  of  his  original 

through  it.  appropriation,  and  its  quality  shall 

Caruthers     vs.      Pemberton,     i  not  be  impaired  so  as  to  defeat 

Mont.  III.   The  carrying  capacity  the  purposes  of  its  appropriation, 

of  a  ditch  is  not  established  by  a  To  this  extent  his  rights  go,  and 


372 


NATURE  AND  EXTENT  OF  RIGHTS.       [§  230,  231 


have  attached  to  the  remainder  of  the  water  and  the  same  has 
been  appropriated  by  them  the  first  can  not  in  any  way  in- 
crease his  appropriation  by  extending  or  enlarging  his  ditch, 
raising' his  dam,  changing  the  place  or  nature  of  the  use  of  the 
water,  or  by  any  other  method  increase  the  amount  of  water 
diverted  and  used  by  him  under  his  appropriation,  if  the  later 
comers  are  in  any  way  injured  or  their  rights  infringed  upon. 
The  right  of  the  subsequent  appropriators  to  the  use  of  the 
surplus  of  the  water  running  in  the  stream,  subject  to  the 
original  extent  of  the  appropriation  of  the  first,  is  as  perfect 
as  his  own  right. ^ 

§231.  Special  Purpose  Often  Determines  Extent. —  The 
special  purpose  or  object  for  which  water  is  to  be  used  often 
determines  the  extent  of  the  appropriator's  right  to  the  water, 
and  in  such  a  case  the  appropriator  is  entitled  to  only  so  much 
as  is  reasonably  necessary  for  that  purpose.    And  if  he  diverts 


no  further.  In  subordination  to 
those  rights  subsequent  appropri- 
ators may  make  use  of  the  chan- 
nel of  the  stream  as  they  think 
proper,  and  they  may  mingle  its 
waters  with  other  waters,  and  di- 
vert an  equal  quantity  as  often  as 
they  choose. 

Ortman  vs.  Dixon,  13  Cal.  33; 
McKinney  vs.  Smith,  21  Cal.  374; 
Nevada  Water  Co.  vs.  Powell,  34 
Cal.  109;  Higgins  vs.  Barker,  42 
Cal.  233;  Brown  vs.  Mullin,  65 
Cal.  89;  Junkans  vs.  Bergen,  67 
Cal.  267;  Lobdell  vs.  Simpson,  2 
Nev.  274;  Proctor  vs.  Jennings,  6 
Nev.  83;  Barnes  vs.  Sabron,  10 
Nev.  217;  Strait  vs  Brown,  16 Nev. 
317;  Chiatovich  vs.  Davis,  17  Nev. 
133;  Thomas  vs.  Guiraud,  6  Colo. 

530- 

1  Nevada  Water  Co.  vs.  Powell, 
34  Cal.  109;  Ortman  vs.  Dixon,  13 
Cal.  33;  Higgins  vs.  Barker,  42 
Cal.  233;  Davis  vs.   Gale,  32  Cal. 


25;  Lobdell  vs.   Simpson,   2   Nev. 
274. 

Barnes  vs.  Sabron,  10  Nev.  217. 
In  this  case  it  was  held  that  the 
appropriator  is  only  entitled  to  as 
much  water  as  is  necessary  to  irri- 
gate his  land,  and  is  bound  under 
the  law  to  make  a  reasonable  use 
of  it.  What  is  a  reasonable  use 
depends  upon  the  circumstances 
of  each  particular  case.  And  it 
was  also  held  that  under  the  par- 
ticular facts  of  this  case  that  the 
plaintiff  should  not  be  confined 
to  the  amount  of  water  used  by 
him  the  first  and  second  year  after 
his  appropriation,  nor  his  rights 
regulated  by  the  number  of  acres 
he  then  cultivated;  but  that  the 
object  had  in  view  at  the  time  of 
his  diversion  of  the  water  must 
be  considered  in  connection  with 
the  actual  extent  of  his  appropri- 
ation. 

See  also  Atchison  vs.  Peterson; 
20  Wall.  514. 


§  231,  232]       NATURE  AND  EXTENT  OF  RIGHTS.  373 

more  water  than  lie  can  actually  use  for  his  original  purpose, 
or  changes  the  object  so  as  to  increase  the  amount  of  water 
diverted,  he  m'ay  be  prevented  from  such  wasteful  or  addi- 
tional diversion  by  any  subsequent  claimants  who  may  have 
secured  rights  in  the  water  of  the  stream,  and  whose  rights 
are  thereby  affected.^ 

§  232.  Same. — Authorities  Discussed.  —  Upon  this  very 
important  question  the  Supreme  Court  of  California  in  the 
case  of  Nevada  W.  Co.  vs.  Powell, ^  said:  "The  question, 
what  is  the  extent  of  the  right  originally  acquired  by  plaintiff, 
to  which  all  subsequently  acquired  rights  must  be  subor- 
dinate, is  one  of  fact  for  the  jury.  The  dam  as  originally  con- 
structed was  six  feet  high.  Before  any  other  rights  had  been 
acquired  in  the  waters  of  the  stream  or  in  the  banks,  or  in  the 
lands  adjacent,  the  plaintiff  undoubtedly  under  the  customs 
of  the  country  and  recognized  law  of  the  land  was  authorized 
to  appropriate  the  waters  of  Shady  Creek  for  mining  purposes, 
and  to  acquire  a  right  to  construct  a  dam  and  employ  other 
means  sufficient  in  the  condition  of  the  stream  as  it  then  ex- 
isted to  enable  it  to  control  the  waters  appropriated  for  the 
uses  contemplated.  How  far  great  possible  physical  changes 
might  then  be  anticipated  and  provided  for  by  extending  the 
claim  it  is  not  now  necessary  to  determine.     But  suppose  the 

1  Nevada  Water  Co.  vs.  Powell,  public     domain     became     owner 

34  Cal.  109;  McKinney  vs.  Smith,  thereof,  and  of  the  right   to  use 

21  Cal.  374;  Barnes  vs.  Saljron,  10  the   waters   first    appropriated 

Nev.  217;  Davis  vs.  Gale,  32  Cal.  thereby,  so  long  as  they  use  the 

26;  Kidd  vs.    Laird,   15   Cal.    161;  water  for  irrigating  purposes  and 

Woolman  vs.  Garringer    i  Mont.  to  the  extent  of  such  appropria- 

535-  tion. 

Simpson  vs.  Williams,  18  Nev.  Wilcox  vs.  Hausch,  64  Cal.  461; 

432;  4  Pac.  Rep.  1213,  where  the  3  Pac.  Rep.  loS. 

Court   held   that  the   amount   of  No  one  is  entitled  to  have  a  pri- 

water  to  which  the  first  appropri-  ority  adjudged   for    more    water 

ator  is  entitled  must  be  limited  to  than  he  has  actually  appropriated, 

the  amount  of  water  actually  ap-  nor   for   more    than    he   actually 

plied  to  the  purposes  of  irrigation.  needs.    Priority  of  right  is  limited 

Lehi  Ir.  Co.  vs.  Moyle,  4  Utah,  by  each  of   these  considerations. 

327,  9  Pac.  Rep.   867,    where  the  Nichols  vs.  Mcintosh  (Colo).   34 

Court  held  that  the  person   who  Pac.  Rep.  278. 

bnilt  an  irrigating  ditch   on    the  a34Cal.  109.   iiS. 


374  NATURE  AND  EXTENT  OF  RIGHTS.  [§  232' 

plaintiff  appropriated  the  waters  and  constructed  its  ditch  and 
dam  amply  sufficient  under  the  conditions  of  the  stream  and 
the  country  as  it  then  existed  to  make  it  available,  and  ac- 
quired aright  to  appropriate  and  use  said  water  in  the  manner 
adopted  and  to  the  extent  of  the  appropriation,  this  would  not 
prevent  other  parties  from  acquiring  rights  in  the  surplus 
water,  or  in  the  bed  and  banks  of  the  stream,  or  in  the  ad- 
jacent lands,  to  any  extent  which  should  not  interfere  with 
the  rights  before  acquired.  And  when  the  rights  of  the  sub- 
sequent appropriators  once  attach  the  prior  appropriator  can- 
not encroach  upon  them  b}-  extending  his  rights  beyond  the 
first  appropriation.  In  this  case  the  plaintiff  appropriated  the 
waters  of  Shady  Creek,  constructed  its  ditch  and  dam  for  the 
purpose  of  conveying  it  away  for  the  uses  contemplated,  and 
the  mode  of  use,  so  far  as  anything  to  the  contrary  appears  by 
the  tcstimon}^,  was  sufficient  in  the  then  condition  of  the 
stream  to  enable  the  plaintiff  to  enjoy  the  waters  in  the  most 
advantageous  manner.  It  does  not  appear  that  plaintiff  ac- 
quired any  rights  or  made  any  claim  beyond  this.  If  plain- 
tiff's right  was  thus  limited  to  the  extent  and  mode  of  the 
actual  appropriation — and  from  the  mere  fact  of  appropriation 
and  enjoyment  to  a  certain  extent  and  in  a  particular  manner, 
no  presumption  of  law  arises  that  the  right  is  more  extensive 
than  is  indicated  b}-  the  actual  appropriation  and  mode  of  en- 
joyment— then  the  defendants  had  a  right  to  take  up  the  min- 
ing claims  on  the  stream  above  and  work  them  in  any  manner 
which  would  not  encroach  upon  the  rights  of  the  plaintiff,  as 
they  were  actually  vested  and  enjoyed  at  the  time  of  locating 
such  mining  claims.  To  that  extent  they  themselves  would 
be  the  first  appropriators,  and  being  first  in  time  would  be 
first  in  right.  When  the  right  has  once  vested  in  the  de- 
fendants the  plaintiff  is  no  more  justified,  by  extending  its 
own  claim  or  changing  the  means  of  appropriation,  in  inter- 
fering with  the  full  enjoyment  of  the  right  vested  in  the  de- 
fendants than  the  defendants  would  be  in  encroaching  upon 
the  prior  rights  of  the  plaintiff.  "^ 

1  Simpson  vs.  Williams,  i8  Nev.       waste    water    of    a    stream    run- 

432;  4  Pac.  Rep.  1213.  ning    through    a   certain    named 

Under  a  judgment  defining  the       ranch  as  being    "that   portion  of 


§233]  NATURE  AND  EXTENT  OF  RIGHTS.  375 

§233.  Cli;mi;e  of  Use. — When,  however,  the  water  has 
been  once  lawfully  appropriated  and  the  extent  of  the  appro- 
priation determined  by  the  particular  use  or  purpose  for 
which  it  was  made  the  rights  acquired  by  the  prior  appro- 
priator  in  and  to  the  water  are  not  lost  by  changing  the  use  to 
which  it  was  first  applied  to  some  other  use,  or  the  place  at 
which  it  was  first  employed  to  some  other  place.  By  his  legal 
appropriation  of  the  amount  of  water  sufficient  for  his  original 
purpose  he  is  entitled  to  that  amount  and  may  apply  it  to  any 
of  the  beneficial  uses  he  may  see  fit,  as  against  other 
parties  whose  rights  have  accrued  subsequently  to  his  own, 
provided  the  amount  of  water  taken  b}'  him  is  not  thereby 
increased  beyond  that  of  his  original  appropriation,  nor  the 
rights  of  those  coming  later  injured  or  impaired  in  any 
manner. 1  But  the  extent  of  the  first  appropriator's  rights  are 
fixed  by  the  amount  of  water  diverted  necessary  for  the  origi- 
nal use  or  purpose.  If  the  waters  were  appropriated  origi- 
nally for  working  a  mining  claim  the  owner  may  at  any  time 
extend  his  ditch  and  use  the  same  quantity  of  water  at  other 
points  or  for  a  difi"erent  purpose.  If  he  does  not  need  the 
water  for  w^orkiug  the  mining  claim  he  may  use  it  for  irrigat- 
ing the  soil  ;^  or  ceasing  to  use  it  he  may  sell  his  water  right 
to  another  who  will  apply  it  to  some  beneficial  purpose.-*  The 


said  waters  which  is  not  necessary  Drake  vs.  Earhart  (Maho),  23  Pac. 

to   irrigate    said    ranch    and    for  Rep.  541. 

household  purposes  thereon,"  the  1  Maeris  vs.  Bicknell,  7  Cal.  261; 

person   having  the  right   to  such  Hill  vs.  vSmith,  27  Cal.   476;  Davis 

waste    water   is    entitled     to    all  vs.    Gale,   32    Cal.    26;    Kidd   vs. 

the  water  not  reasonable  and  nee-  Laird,  15  Cal.  161;  Coffin  vs.   Left 

essary   for   the   purposes   of   that  Hand    Ditch    Co.,    6    Colo.     443; 

particular  ranch;  and   the   use  of  Thomas  vs.  Guiraud,  6  Colo.  530; 

a  greater   quantity   than    is   nee-  Sieber  vs.  Frink,  7  Colo.  148;  Dorr 

essary  by  the  owner  of  such  ranch,  vs.  Hannnond,  7  Colo.  79;  Mining 

or     a      diversion       thereof      for  Co.  vs.  Morgan,  19  Cal.  609;  Water 

other  purposes,  is   a   violation  of  Co.  vs.  Powell,  34  Cal.  109. 

such   right   for   whicli    an   action  '^  Davis    vs.    Gale,    32    Cal.    26, 

will  lie.  Woolnian  vs.  Gariinger,    i    Mt>Mt. 

Byrne  vs.  Crafts,  73  Cal.  641;  15  535. 

Pac.  Rep.  300;  Kirk  vs.   Hartholo-  =<  Fabian  vs.  Collins,  2  Mont.  510; 

mew    (Idaho),    29   Pac.    Rep.   40;  Orlnian    v.s.    Dixon,     13   Cal.    33; 


376  NATURE  AND  EXTENT  OF  RIGHTS.  [§  233 

Supreme  Court  of  California  in  tlie  case  of  Davis  vs.  Gale,^  states 
that  rule  governing  the  extent  ofthe  prior  appropriator's  rights 
to  the  water  of  a  stream,  from  his  side  of  the  question,  as  not 
being  in  an^^  manner  lost  by  the  change  of  use  to  which  it  is 
applied,  as  follows  :  "Suppose  a  party  taps  a  stream  of  water 
for  the  purpose  of  surface  mining  in  a  given  locality,  and 
afterwards  finds  that  the  ground  will  not  pay,  or  that  ground 
farther  on  will  pay  better,  may  he  not  abandon  the  former  and 
extend  his  ditch  to  the  latter  without  losing  his  priority  ?  Or 
suppose,  after  working  off  the  surface  he  finds  quartz,  may  he 
not  erect  a  mill  and  convert  the  water  into  a  motive  power 
without  forfeiting  his  prior  right  ?  Suppose  he  appropriates 
the  water  for  the  purpose  of  running  a  saw  mill,  and  after  the 
timber  is  exhausted  he  finds  that  a  grist  mill  will  pay,  may 
he  not  convert  the  former  into  the  latter  without  surrendering 
his  priority  to  some  one  who  may  have  subsequently  and  in 
the  meantime  tapped  the  same  stream  ?  ^ 

"  We  think  all  this  may  be  done,  and  are  unable  to  suggest  a 
plausable  reason  why  it  may  not.  In  cases  like  the  present  a 
party  acquires  a  right  to  a  given  quantity  of  water  by  appro- 
priation and  use,  and  he  loses  that  right  by  non-use  or  aban- 
donment. Appropriatio7i,  use,  and  non-use  are  the  tests  of  his 
rights  ;  and  place  of  use  and  character  are  not.  When  he  has 
made  his  appropriation  he  becomes  entitled  to  the  use  of  the 
quantity  which  he  has  appropriated  at  any  place  where  he 
may  choose  to  convey  it,  and  for  any  other  useful  and  beneficial 
purpose  to  which  he  may  choose  to  apply  it.  Any  other  rule 
would  lead  to  endless  complications,  and  most  materially  impair 
the  value  of  water-rights  and  privileges.  The  water-rights  in- 
volved in  this  case  may  not  be  of  great  value,  and  their  acquisi- 
tion may  not  have  been  attended  with  much  expense,  but  there 
are  many  similar  privileges  which  have  been  secured  only  by  the 
use  of  large  sums  of  money,  and  to  hold  that  they  are  limited 
to  the  particular  place  or  to  the  particular  purpose  in  view  of 
which  they  were  first  sought  would,  for  obvious  reasons,  lead 

Barldey  vs.   Tieleke,  2  Mont.  59;  Crary,    25    Cal.    504;    Dalton    vs. 

Smith   vs.    O'Hara,    43    Cal.    371;  Bowker,  8  Nev.  190. 

McDonald  vs.  B.  R.  &   M.  Co.   13  1  32  Cal.  34. 

Cal.'    220;    Union    Water    Co.    vs.  2  See    Gallagher    vs.    Montecito 


§233,234]       NATURE  AND  EXTENT  OF  RIGHTS.  377 

to  most  pernicious  results  and  greatly  delay  and  embarrass 
the  development  of  the  resources  of  the  country." 

And  as  to  the  extent  of  his  right,  discussed  from  the  subse- 
quent appropriator's  stand  point,  the  same  Court  in  a  later 
case  maintained  the  doctrine  held  in  the  above  quotation.^ 

§  231:.  S:ime. — Authorities  Contiimeil. — But  we  have  said 
that  the  rights  of  subsequent  appropriators  must  not  be  injured 
in  any  manner  by  the  change  of  the  use  of  tlie  water  by  the 
first  appropriator.  Some  uses  that  the  first  appropriator  may 
have  put  the  water  to  might  consume  all  the  water  diverted; 
but  again,  certain  uses  for  which  the  appropriation  was  orig- 
inally made  may  not  materially  diminish  the  quantity  of  the 
water  flowing  in  the  stream  below  the  first  appropriator's 
ditch.  Take,  for  instance,  water  diverted  for  irrigation,  and 
that  diverted  for  running  a  mill.  If  the  appropriation  was 
made  for  the  latter  purpose  very  little  water  of  the  stream 
would  be  actually  consumed.  The  public  have  notice  of  the 
water  that  is  actually  appropriated  and  consumed  by  the  first 
appropriator,  and  subsequent  appropriators  have  a  right  to 
take  out  the  amount  remaining  in  the  stream.  Now  the  law 
is  settled  upon  this  question,  that  in  cases  similar  to  this  the 
first  appropriator  cannot  change  the  use  to  which  he  applies 
the  water  to  such  a  purpose  as  will  consume  all  the  water  or 
any  amoitnt  over  and  above  the  amount  actually  consumed  Ijy 
him  by  the  first  use  to  which  he  applied  it,  to  the  injury  of 
the  subsequent  appropriator's  rights. 

Upon  this  question  a  recent  decision  in  the  Circuit  Court  ot 
the  United  States  for  the  District  of  Idaho  is  to  be  taken  as 
authority.  The  Court  said  in  the  case  of  the  Last  Chance 
Mining  Co.  vs.  Bunker  Hill  &  S.  Mining  &  Concentrating 
Co.: 2  "The  use  for  which  the  water  is  appropriated  and  to 
which  it  is  applied  is  an  important  factor  in  the  construction 
of  the  statute.  The  controlling  question  in  any  case  is 
whether  subsequent  locators  have  had  such  notice   of  prior 

Val.  W.   Co.  (Cal.);  35  Pac.    Rep.       pruvious     section.      See     Section 
770.  154- 

1  See    Nevada    Water     Co.    vs.  249  reel.  Rep.  430. 'lcci<K-<l   I'l-b- 

Powell,  34  Cal.  118;  and  fjuoted  in       rnary  29,  1892. 


378  NATURE  AND  EXTENT  OF  RIGHTS.  [§  234 

rights,    and  their  extent  and   effect,   as  would  guard   them 
against  making  invalid  locations. 

"  In  illustration,  suppose  some  certain  amount  of  water  is 
appropriated  to  be  used  as  a  power  by  its  conversion  into 
steam;  or  by  combination  with  other  elements  is  to  be  con- 
verted into  articles  of  merchandise;  or  to  be  used  upon  some 
certain  tract  of  land  for  the  purpose  of  irrigation.  Should 
the  appropriator  be  precluded  from  thereafter  changing  either 
or  both — its  use  or  the  place  thereof?  The  reply  must  be  in 
the  negative,  for  in  all  such  cases  the  purpose  of  the  appro- 
priation is  such  that  no  subsequent  appropriator  can  thereby 
be  misled  to  his  injury.  Distinct  notice  is  given  in  such 
cases,  not  only  that  so  much  water  is  drawn  from  the  public 
supply,  but  that  its  appropriation  is  such  that  it  cannot  be 
used  a  second  time.  It  is  a  notice  that  so  much  water  is 
practically  destroyed — is  eliminated  from  existence  as  water. 
A  subsequent  appropriator  has  actual  notice  that  this  amount 
of  water  is  withdrawn  from  all  public  claim,  is  absorbed,  and 
has  become  a  vested  right.  He  cannot  base  any  claim  upon 
it.  or  upon  any  expectation  that  some  time  in  the  future  it 
will  become  the  subject  of  appropriation.  Should  such  prior 
right  be  subsequently  forfeited  he  gains  nothing  thereby,  as 
his  rights  are  measured  alone  by  what  he  could  and  actually 
did  claim  at  the  time  of  his  appropriation.  Neither  does  he 
loose  anything,  nor  is  he  in  any  way  damaged  should  the  first 
appropriator  change  h,is  use,  or  the  place  thereof,  for  in  either 
event  he  still  has  left  all  he  ever  claimed  or  was  entitled  to 
claim.  The  appropriation  of  water  for  placer  mining  pur- 
poses at  some  specified  place  involves  a  somewhat  similar 
principle.  It  is  such  an  actual  appropriation  of  a  definite 
amount,  and  for  such  purpose  as  in  the  nature  of  things  must 
operate  as  a  notice  to  all  that  its  place  of  use  must  from  time 
to  time,  as  the  ground  is  worked,  be  changed.  Should  one 
use  the  water  after  it  passes  from  the  works  of  the  prior  claim- 
ant, he  must  do  so  at  his  own  risk,  and  he  cannot  complain 
that  changes  are  made  which  he  had  full  notice  would  likely 
occur.  In  this  action,  however,  the  facts  are  quite  different. 
In  1886  the  defendant  located  the  water,  specifying  that  it  was 
to  be  used  at  his  mill  for  the  purpose  of  power  in  operating 


§234]  NATURE  AND  EXTENT  OF  KlCllTS.  379 

machinerj^  and  in  concentratinja^  ores,  and  in  pursuance  of  such 
notice  conducted  it  to  such  mill ,  and  after  there  so  using  returned 
it  to  the  original  channel  of  the  stream  from  which  it  had  been 
taken,  and  practically  undiminished  in  quantity  or  deteriorated 
or  changed  in  quality.  The  use  made  of  it  was  purely  usu- 
fructuary and  in  no  sense  partaking  of  the  nature  of  ownership 
in  the  water.  The  defendant  by  its  declarations  and  acts  in 
effect  said  to  the  world  that  the  only  use  it  had  for  the  water 
was  at  the  place  and  in  the  manner  specified,  and  that  when 
so  used  it  had  no  further  claim  upon  and  abandoned  it.  Under 
such  circumstances  there  was  neither  direct  nor  implied  notice 
that  it  would  be  used  elsewhere  or  for  other  purposes  by  de- 
fendant. On  the  contrary,  the  public  was  justified  in  believing 
that  defendant  had  made  the  only  use  thereof  intended;  that 
the  same  would  continue;  and  that  in  the  future  it  would  be 
returned  to  the  creek  as  it  had  been.  Would  it  not  follow 
from  such  facts  that  plaintiff,  in  claiming  the  water  after  its 
return  to  the  creek,  was  fully  justified  ?  If  justified  in  such 
claim  then  protection  thereof  must  follow.  If  the  defendant's 
position  is  sustained  by  the  law  it  would  follow  that  the  prior 
appropriator  would  in  all  cases  so  absolutely  control  the  water, 
to  the  extent  of  such  appropriation,  that  no  other  person 
could  thereafter  attempt  any  permanent  use  of  it  except  at 
great  risk  of  loss,  even  when  such  use  would  not  damage  the 
first  appropriator.  Suppose,  in  this  case,  the  stream  below 
defendant's  mill  were  lined  with  ore  mills,  all  operated  by  the 
same  water  as  it  passed  from  the  wheels  of  one  mill  to  the 
next  below,  and  all  by  appropriations  subsequent  to  defendant. 
Upon  defendant's  theory  all  such  mills  may  be  closed  and 
utterly  destroyed  whenever  the  latter  concludes  to  modify  his 
plans  and  divert  the  water  el.sewhere.  Such  a  rule  I  am  firmly 
convinced  is  counter  to  the  policy  of  the  law.  Instead  of  de- 
veloping the  country  it  would  block  its  progress.  Instead  of 
utilizing  as  generally  as  possible  nature's  elements  for  the 
public  good  it  would  subject  them  to  the  arbitrary  will  of  any 
individual  who  might  first  assume  a  claim  to  tlu-ni.  It  would 
be  an  extension  of  the  maxim  '  first  in  time,  lirst  in  ri^ht, 
far  beyond  the  limits  of  equity  or  of  justice.  In  this  case  the 
facts  are  not  limited  simply  to  the  approi)riati(>M  <.f  lln-  water, 


380 


NATURE  AND  EXTENT  OF  RIGHTS.       [§  234,  235 


its  use  and  return  to  the  stream  by  defendant,  but  sucli  status 
continued  for  over  three  years  before  plaintiff  located  and 
thereafter  continued  for  over  two  years  to  use  it  without 
objection  by  defendant,  and  before  the  latter  attempted, 
through  the  means  stated,  to  interfere  therewith. 

"Even  if  defendant's  original  claim  to  the  water,  its 
use  and  return  to  the  stream,  without  any  notice  or  reserva- 
tion direct  or  implied,  of  any  other  use,  did  not  constitute  a 
release  of  further  claims  it  certainly  should  be  held  that  the 
continuation  of  such  status  for  over  five  years  must  operate  as 
an  abandonment  of  any  further  or  different  claim  than  that 
exercised." 

§  235.  Amount  Actually  Needed  for  Purpose  of  Appro- 
priation.— As  we  have  seen,  the  special  purpose  or  subject 
for  which  the  water  is  to  be  used  often  determines  the  extent 
of  the  appropriator's  right. ^  The  later  authorities,  especially, 
do  not  look  so  much  to  the  size  of  the  prior  appropriator's 
ditch  at  its  smallest  point  to  determine  the  extent  of  his  right 
in  and  to  the  water  of  the  stream  as  did  the.  earlier  authori- 
ties,^ but  upon  the  amount  that  is  actually  yieeded  by  the  first 
appropriator  for  the  use  or  purpose  to  which  he  applies  it. 
This  gradual  change  is  due  undoubtedly  to  the  fact 
that  the  irrigated  portion  of  the  arid  west  is  rapidly  becoming 
settled  up.  And  as  the  population  increases  and  additional 
lands  are  being  settled  upon,  wdiich  require  water  for  irrigation 
in  order  that  they  may  be  cultivated,  the  demand  for  water  is 
becoming  each  year  greater.  In  the  early  days  when  settlers 
in  the  arid  region  were  scarce  and  there  was  plenty  of  water 
for  all  if  a  person  constructed  a  ditch  of  a  certain  capacity 
and  diverted  water  enough  to  fill  it  from  the  stream  before  the 
rights  of  subsequent  claimants  to  the  water  of  the  same  stream 
had  accrued,  the  first  appropriator's  rights  were  considered 
fixed  by  the  capacity  of  the  ditch.  And  although  the  ditch 
might  have  a  capacity  of  ten  times  the  amount  of  water  that 
he  needed  for  the  purpose  for  which  he  had  appropriated  it, 
but  little  regard  was  paid  to  that  fact,  and  the  only  restric- 

ivSee  Sections  231  and  232.      2  See  Ante  Section  231. 


§235]  NATURE  AND  EXTENT  OF  RKiHTS.  381 

tion  placed  upon  him  was  that  he  was  not  permitted  to  still 
farther  enlarge  the  capacity  of  his  ditch  and  increase  the 
amount  of  the  appropriation  of  the  water  as  against  the  rights 
of  others  who  had  laid  claim  to  the  surplus  subsequent  to  him. 
Also,  as  the  experience  of  practical  irrigators  each  year  has  be- 
come greater  it  has  been  demonstrated  in  hundreds  of  in- 
stances that  the  soil  will  yield  larger  and  better  crops 
by  not  using  so  much  water  in  irrigating  as  was  at  first 
thought  necessary.  And  as  the  demand  became  greater  the 
Courts  have  often  stepped  in  and  prevented  wasteful  diver- 
sion of  the  water  by  holding  that  the  mere  diversion  of  tlie 
same  is  not  a  legal  appropriation  of  it,  but  that  there  must 
be  an  application  of  all  the  water  diverted  within  a  reasonable 
timeor  the  diversion  of  any  portion  not  so  applied  is  unlawful.' 
It  is  very  plain  from  these  authorities  that  no  matter  how 
early  a  person's  prior  appropriation  may  have  been  he  is  not 
entitled  to  divert  in  his  ditches  more  water  than  is  necessary 
for  his  actual  use.  An  excessive  diversion  of  water  cannot 
be  regarded  as  a  diversion  to  a  beneficial  use,  within  the  mean- 
ing of  the  law,  so  that  the  Courts  will  uphold  the  excessive 
or  wasteful  diversion.  Claimants  in  the  arid  west  are  too 
numerous,  water  too  scarce,  and  consequently  too  precious  an 
article  to  admit  of  waste.  The  universal  rule  of  the  arid 
west,  "  that  he  who  has  the  prior  has  the  superior  rights," 
does  not  imply  that  the  appropriator  may  be  extravagantly 
prodigal  in  dealing  with  this  precious  bounty  of  nature. 

1  Canal,  etc.,  Co.  vs.  Southworlli,  Iliiidiiian  vs.  Rizor,  21  Ore.  112; 

13  Colo,    iii;    21   Pac.    Rep.    102S;  27   Pac.    Rep.    23;    Siunnoiids   vs. 

McFadden  vs.  Board,  74  Cal.  571;  Winters,  21  Ore.  35;  27  Pac.   Rep. 

16   Pac.    Rep.   397;   Schilling    vs.  7;  Combs   vs.   Agricultural  Ditch 

Rominger,    4   Colo.   100;  Thomas  Co.,  17  Colo.  146;  2S  Pac.  Rep.  966; 

vs.  Guiraud,   6    Colo.  533;  Sieber  Drake  vs.  Karhart  (Idaho),  23  Pac. 

vs.  Frink,  7  Colo.  149;  2  Pac.  Rep.  Rep.  541;  Basey  vs.  Gallagher,  20 

901.  Wall.  6S1;  Atchison  vs.  Peterson, 

Wheeler  vs.  Northern  Colo.  Irr.  20  Wall.  507;  Jennison  vs.  Kirk, 

Co.,  10  Colo.  582;  17  Pac.  Rep.  4S7,  89  U.   S.  461;  Brodcr  vs.   Natonia 

in  which  the  Court  held:     "The  Water  Co.,  101  V.  S.  276. 

diversion   of  water   ripens  into  a  ;\    person    h.iving   the  ri^ht    to 

valid  appropriation  only  when  the  tlie  exclusive  use  of  water  (lowing 

the  water  is  utilized   by    the  con-  throuj^h  a  ditch  constructed  across 

sumer."  his  land,  at  any  point  on  said  lanil 


382 


NATURE  AND  EXTENT  OF  RIGHTS. 


[§236 


§  236.  Authorities  on  Subject. — In  the  case  of  Simmons 
vs.  Winters^  the  Supreme  Court  of  Oregon  held,  that:  "  To 
make  a  valid  appropriation  of  water  there  must  be  some  actual 
beneficial  purpose  existing  at  the  time  or  contemplated  in  the 
future  as  the  object  for  which  the  water  is  utilized.  The 
needs  of  the  purpose  for  which  the  appropriation  is  made  is  the 
limit  to  the  amount  of  water  which  may  be  taken." 

Also  the  same  Court  in  the  case  of  Hinman  vs.  Rizor,^  a  re- 
cent case,  said:  "  The  amount  of  water  diverted  by  Cleaver 
and  Peters  in  1863,  from  the  best  impressions  we  can  gather 
from  the  evidence,  was  about  80  inches.  This  quantity  does 
not  seem  to  have  been  utilized  by  them  during  their  occu- 
pancy of  the  land.  They  had  a  right  to  appropriate  water 
sufficient  for  the  present  and  contemplated  necessary  irriga- 
tion of  the  land  occupied  by  them,  but  the  amount  to  which 
their  prior  right  attaches  must  be  restricted  to  the  quantity 
needed  for  that  purpose."  And  the  Court  also  held  in  the 
same  case  that  an  appropriator  is  entitled  to  have  in  the  natural 
bed  or  channel  of    the  stream  during  the  irrigating  season 


where  he  may  desire  to  turn  it  for 
irrigating  purposes  during  the 
spring  and  summer  months,  has 
the  preference  during  the  season 
when  the  condition  of  his  premises 
is  such  as  to  require  the  use  of  the 
water  for  the  purposes  mentioned, 
but  has  no  right  to  waste  it  at  any 
time,  or  to  use  it  extravagantly  or 
imprudently.  Huston  vs.  Bybee, 
2  L.  R.  A.  56S;  17  Ore.  140;  20  Pac. 
Rep.  51. 

See  also  Stowell  vs.  Johnson,  7 
Utah,  215;  26  Pac.  Rep.  290,  in 
which  the  Court,  in  a  suit  con- 
cerning the  waters  of  a  certain 
stream , where  it  was  found  that  the 
defendants  had  appropriated  all 
the  waters  of  said  stream  for 
the  irrigation  of  their  lands,  which 
was  a  necessary  and  beneficial  use 
thereof,  dating  from  the  year 
1848,  and  so  continued  to  appro- 


priate and  use  said  waters  during 
each  and  every  part  of  each  and 
every  year  thereafter  to  the  inter- 
ruption thereof  by  the  plaintiffs, 
and  in  1882  diverted  part  of  the 
waters  of  the  tributaries  of  the 
stream  daring  the  winter  season, 
and  continued  so  to  divert  it  for 
a  useful  purpose  until  1888, 
when  the  Court  found  that  the  de- 
fendants did  not  need  during  the 
winter  season  the  water  diverted 
by  the  plaintiffs  held,  that  a  de- 
cree that  the  plaintiffs  were  en- 
titled to  the  water  diverted  by 
them  during  the  winter  season 
was  not  contrary  to  the  findings. 

Kirk  vs.  Bartholomew  (Idaho), 
29  Pac.  Rep.  40;  Quigley  vs.  Birds- 
eye,  II  Mont.  439;  28  Pac.  Rep. 
741. 

1  21  Oregon,  35;  27  Pac.  Rep.  7. 

221  Oreg.  112;  27   Pac.   Rep.  13. 


§236,237]       NATURE  AND  EXTENT  OF  RIGHTS.  383 

a  certain  number  of  inches  of  the  water,  if  her  priority 
will  warrant  the  same;  but  if  she  does  not  need  that 
amount  she  must  allow  the  surplus  to  remain  in  the 
stream,  and  cannot  complain  if  it  is  used  by  other  settlers 
upon  the  creek,  whether  above  or  below.  And  the  Court  held 
that  one  who  has  appropriated  a  certain  quantity  of  the  wa- 
ters of  the  stream,  but  has  only  used  a  portion  thereof  for  four 
years,  is  entitled  as  against  a  subsequent  appropriator  only  to 
the  quantity  of  water  actiially  used. 

§  237.  Same.— Continued.— In  Nevada  the  Supreme  Court, 
in  the  case  of  Barnes  vs.  Sabron,^  said:  "  If  plaintiff  did  not 
require  the  full  amount  of  his  appropriation  he  could  not  hold 
the  defendants  responsible  in  damages  for  not  turning  it 
down  to  him;  he  was  only  entitled  to  as  much  water — within 
his  original  appropriation — as  was  necessary  to  irrigate  his 
land,  and  was  bound  under  the  law  to  make  a  reasonable  use 
of  it.  In  a  dry  and  arid  country  like  Nevada  where  the  rains 
are  insufficient  to  moisten  the  earth  and  irrigation  becomes 
necessary  for  the  successful  raising  of  crops,  the  rights  of 
prior  appropriators  must  be  confined  to  a  reasonable  and  nec- 
essary use.  The  agricultural  resources  of  the  State  cannot 
be  developed  and  our  valley  lands  cannot  be  cultivated  with- 
out the  use  of  water  from  the  streams  to  cause  the  earth  to  bring 
forth  its  precious  fruits.  No  penson  can  by  virtue  of  a  pricr  ap- 
propriation claim  or  hold  any  more  water  than  is  necessary  for 
the  purpose  of  his  appropriation.  Reason  is  the  life  of  law,  and 
it  would  be  unrea.sonable  and  unjust  for  any  person  to  appro- 
priate all  the  waters  of  a  creek  when  it  is  not  necessarj'  to  use 
the  same  for  the  purposes  of  his  appropriation.  The  law 
which  recognizes  the  vested  rights  of  prior  appropriators  has 
always  confined  such  rights  within  reasonable  limits.  *  *  * 
What  is  a  reasonable  use  depends  upon  the  peculiar  circum- 
stances of  each  particular  case.  *  *  *  jf  tj^e  capacity  of 
his  ditches  is  greater  than  is  necessary  to  irrigate  his  fanning 
land  he  must  be  restricted  to  the  quantity  needed  for  the  pur- 
poses of  irrigation,  for  watering  his  stock  and  for  domestic 

1  lo  Nev.  243. 


384  NATURE  AND  EXTENT  OF  RIGHTS.  [§  237 

purposes.  If,  however,  the  capacity  of  his  ditches  is  not  more 
than  sufficient  for  those  purposes  then,  under  all  the  facts  of 
his  case,  no  change  having  been  made  in  either  of  plaintiff's 
ditches  since  they  were  constructed,  and  no  question  of  the 
right  of  enlargement  being  involved,  he  must  be  restricted 
to  the  capacity  of  his  ditches  at  their  smallest  point;  that  is, 
at  the  point  where  the  least  water  can  be  carried  through 
them." 

In  the  case  of  Kirk  vs.  Bartliolemew^  the  Court  held  that: 
"  In  determining  the  amount  of  water  appropriated  for  useful 
or  beneficial  purposes  the  number  of  acres  claimed  or  owned 
by  each  party  and  the  amount  of  water  necessary  to  the 
proper  irrigation  of  the  same  should  be  taken  into  considera- 
tion." 

In  Combs  vs.  Agricultural  Ditch  Co. ^  the  Court  held  that: 
In  determining  a  controversy  as  to  water  rights  not  only  the 
actual  prior  appropriations  of  water  but  the  quantity  of  land 
and  character  of  the  soil  to  be  irrigated  are  to  be  considered, 
and  also  that  no  person  can  appropriate  more  water  than  he 
has  actual  use  for. 

But  this  is  not  all,  the  Supreme  Court  of  the  United  States, 
in  nearly  all  of  the  few  cases  involving  the  rights  to  water 
that  have  been  appealed  to  that  Court  from  the  arid  region, 
has  touched  upon  this  subject  in  such  a  manner  that  it  is 
plain  that  if  a  case  should  be  taken  up  to  the  Court  involving 
this  question  of  wasting  water  it  would  be  decided  against 
the  parties  so  wasting  it. 

In  the  case  of  Atchison  vs.  Peterson,^  decided  in  1874, 
Mr.  Justice  Miller,  in  giving  the  opinion  of  the  Court,  said: 
"The  right  to  water  by  prior  appropriation,  thus  recognized 
and  established  as  the  law  of  miners  on  the  mineral  land  of 
the  public  domain,  is  limited  in  every  case  in  quantity 
and  quality  by  the  uses  for  which  the  appropriation  is  made. 
A  different  use  of  the  water  subsequently  does  not  affect  the 
right;  that  is  subject  to  the  same  limitations  whatever  the  use. 
The  appropriation  does  not  confer  such  an  absolute  right  to 

1  (Idaho)  29  Pac.  Rep.  40.  2  17  Colo.  146;  28  Pac.  Rep.  966. 

3  20  Wall.  514. 


§237]  NATURE  AND  KXTENT  OF  RIGHTS.  385 

the  bod}-  of  the  water  diverted  that  the  owner  can  allow  it 
after  its  diversion  to  run  to  waste  and  prevent  others  from 
using  it  for  mining  and  other  legitimate  purposes;  nor  does  it 
confer  such  a  right  that  he  can  insist  upon  the  flow  of  the 
water  without  deterioration  in  quality,  where  such  deteriora- 
tion does  not  defeat  or  impair  the  uses  to  which  the  water  is 
applied." 

And  also  in  the  case  of  Basey  vs.  Gallagher,^  decided  in  the 
same  year,   Mr.  Justice  Field,  speaking  for  the  Court,  said: 
"  Water  is  diverted   to  propel  machinery  in  flour  mills  and 
saw  mills,  and  to  irrigate  lands  for  cultivation  as  well  as  to 
enable  miners  to  work  their  claims;  and  in  all  such  cases  the 
right   of  the  first  appropriator  exercised  within  reasonable 
limits  is  respected  and  enforced.     We  say  within  reasonable 
limits,   for  this  right  to  water,  like  the  right  by  prior  occu- 
pancy to  mining  ground  or  agricultural  land,   is  not  unre- 
stricted.    It  must  be  exercised  with  reference  to  the  general 
condition  of  the  country  and  the  necessities  of  the  people,  and 
not  so  as  to  deprive  a  whole  neighborhood  or  conununity  of 
its  use,  and  vest  an  absolute  monopoly  in  a  single  individual." 
From  these  authorities  there  can  be  no  question  but  that: 
First,  the  object  had  in  view  at  the  time  of  an  appropriator's 
diversion  of  the  water  must  be  considered  in  connection  with 
the  actual  extent  of  his  appropriation:     Second,  if  the  capacity 
of  his  ditch  is  greater  than  is  necessary  to  irrigate  his  land 
under  cultivation,   or  to  be  cultivated,  or  will  carry   more 
water  than  is  needed  for  the  purpose  for  which  it  is  diverted, 
the  appropriator  will  be  restricted  by  the  Court  to  a  reasonable 
quantity  actually   needed  for  that  purpose.     Third,  if  how- 
ever the  capacity  of  his  ditch   is  not  more  than  sufficient  to 
carry  the  amount  of  water  for  the  purpose  to  which  the  water 
is  applied,  and  if  the  rights  of  others  to  the  waters  of  the  stream 
have  accrued  since  his  appropriation  was  completed,  then  the 
appropriator  must  be  restricted  to  the  capacity  of  his  ditch  at 
its  smallest  point  as  the  maxhnum  amount  of  water  that  he 
can    divert   under    his    ai^propriation.    if   in    extending    that 

1  20  Wall.  ()70. 


386  NATURE  AND  EXTENT  OF  RIGHTS.       [^  237,  238 

amount  the  rights  of  those  claiming  subsequent  to  him  are  im- 
paired or  injured  in  any  manner.^ 

§  238.    Appropriiitor    Not     Limited    to    First    Amount 

Useil. — We  have  seen  that  a  person  could  not  appropriate 
more  water  than  was  necessary' for  the  purpose  or  use  to  which 
it  was  intended  to  be  applied.  But  the  authorities  agree  upon 
the  proposition  that  if  the  amount  of  water  appropriated  is 
within  the  given  beneficial  purpose  for  which  it  was  first 
taken,  as  for  example  no  more  than  is  necessary  to  irrigate 
the  lands  contemplated  to  be  reduced  to  cultivation  as  soon  as 
can  be  reasonably  done,  although  more  than  can  be  beneficially 
used  in  the  immediate  present,  it  is  nevertheless  a  valid  ap- 
propriation.^ 

If  the  purpose  contemplated  is  that  of  irrigation,  while  he 
cannot  divert  more  water  than  is  necessary  to  irrigate  his 
lands  which  he  intends  eventually  to  cultivate;  nor  can  own 
or  hold  by  possessory  title  any  waters  for  which  he  has  no 
use,  yet  he  is  not  required  in  order  to  make  his  appropriation 
valid  to  apply  to  a  beneficial  use  or  purpose  during  the  first 
years  of  his  settlement  the  full  amount  of  water  appropriated 
when  such  amount  is  not  more  than  is  necessary  to  irrigate 
the  lands  he  intends  to  subject  to  cultivation,  and  to  irri- 
gate which  the  original  appropriation  was  made.  What  con- 
stitutes a  reasonable  time  in  which  all  the  water  appropriated 
must  be  applied  to  some  useful  purpose  is  a  question  of  fact  for 
the  jury  to  decide,  and  depends  upon  the  peculiar  circum- 
stances of  each  case.  In  determining  the  quantity  of  water 
a  person  is  entitled  to  use  for  irrigating  purposes  it  is 
proper  for  the  jury  to  consider  the  acts  of  the  appropriator, 
then  the  manner  in  which  the  ditch  was  constructed,  the  gen- 
eral size,  etc.;  also  it  is  proper  for  them  to  consider  the  num- 
ber of  acres  to  be  cultivated,  the  quality  of  the  land,  the 
character  of  the  soil  and  the  amount  of  water  necessary  for  its 
proper  cultivation.  The  appropriator  will  not  be  limited  to 
the  quantity  turned  into  his  ditch  in  the  first  place  unless  by 

1  Byrne  vs.  Crafts,  73  Cal.  641.  Simmons  vs.  Winters,  21  Or.  35; 
See  also  authorities  cited  above.  27  Pac.  Rep.  9;  Pomeroy  on  Rip. 

2  Barnes  vs.  Sabron,  10  Nev.  243;        Rights,  47. 


§238,239]        NATURE  AND  EXTENT  OF  lilUHTS.  387 

the  general  plan,  size  and  grade  of  the  ditch  it  was  not  capable 
of  carrying  more  than  was  first  diverted.  If,  however,  by 
reason  of  any  obstructions  or  irregularities  in  the  grade  of  the 
ditch  it  was  not  capable  of  diverting  as  much  water  as  its 
general  size  would  indicate,  and  as  the  general  quantity  of 
land  to  be  irrigated  for  which  the  appropriation  was  made 
would  reasonably  require,  the  appropriator  will  be  allowed  a 
reasonable  time  to  remove  such  obstructions  or  adjust  the 
grade,  reduce  his  land  to  cultivation  and  then  fill  his  ditch  to 
its  full  capacity.' 

§  239.  Same.— Continued.— Upon  this  subject  the  decision 

in  the  case  of  Conant  vs.  Jones^  is  the  latest  authority.  The 
case  was  decided  Feb  8th,  1893,  and  in  rendering  the  opinion 
the  Court  said:  "It  is  contended  that  respondent  has  not 
used  or  put  to  a  beneficial  use  all  of  the  water  of  said  creek, 
and  for  that  reason  he  has  forfeited  his  right  to  all  of  the 
water  not  used  for  the  purpose  intended.  It  is  true  that  the 
evidence  fails  to  show  that  respondent  has  utilized  the  entire 
amount  of  water  diverted.  There  is  no  question  but  what 
respondent  has  the  right  to  appropriate  of  unappropriated 
water  sufiicient,  not  only  for  the  present,  but  also  for  the 
future  needs  of  his  land  when  he  shall  get  it  into  cultivation. 
The  question  arises  as  to  the  diligence  to  be  exercised  in  the 
application  of  the  water  to  the  intended  use.  Section  3 161, 
Rev  St.  1887,  declares  the  diligence  necessary  to  be  exer- 
cised in  conducting  the  water  to  the  point  of  intended  use 
after  the  location  of  the  same;   but  tlie   law   is  silent  as  to 

1  Barnes  vs.  Sabron,  10  Nev.  217;  tlie  lands  cultivated  within  a  rea- 

White    vs.    Todd's  V.  W.   Co.,  8  sonable    time   before   subsequent 

Cal.  443;   N.  C.    &   S.    C.   Co.   vs.  rights  accrue;  and  in  a  case  where 

Kidd,   37   Cal.   314;   Simmons  vs.  it  appears  within  10  years  or  more 

Winters,  21  Or.  27;  35  Pac.  Rep.  7;  he   had  cultivated  only    12  acres, 

Hindman  vs.  Rizor,  21   Or.  112;  27  and  permitted  a    portion  of  such 

Pac.  Rep.   13;   Kirk  vs.    Bartholo-  cultivated  land  to  grow  up  in  wil- 

mew    (Idaho),     29    Pac.    Rep.   40;  lows,     he     was     entitled     to     an 

Combs  vs.  Agricultural  Ditch  Co.,  amount  only  sufiicient  to  irrigate 

17  Colo.  146;  28  Pac.   Rep.  966.  the  cultivated   land.     Cole  vs.  Lo- 

A  prior  appropriator  is  entitled  gan  (Ore.),  33  Pac.  Rej).  5()S. 

only  to  sufficient  water  to  irrigate  2  (Idaho)  32  Pac.  Rep.  250. 


388  NATURE  AND  EXTENT  OF  RIGHTS.       [§  239,  240 

the  diligence  to  be  exercised  in  making  application  of  the 
water  appropriated.  The  appropriator  would  no  doubt  be  en- 
titled to  a  reasonable  time  in  which  to  get  his  land  in  cultiva- 
tion and  to  make  such  appropriation.  If  that  be  true,  it  fol- 
lows that  what  constitutes  reasonable  time  is  a  question  of 
fact  dependent  on  the  circumstances  of  each  particular  case. 
No  inflexible  rule  should  be  made  by  which  to  decide  what 
constitutes  a  reasonable  time  in  this  matter.  We  are  of  the 
opinion  that  a  person  who  complies  with  the  law  as  to  locat- 
ing and  conducting  the  water  to  the  point  of  intended  use  has 
such  time  as  he  may  need  or  require,  using  ordinary  diligence 
in  getting  his  land  into  cultivation,  to  make  application  of 
such  water  to  the  intended  use;  such  time,  at  least,  as  is  rea- 
sonable under  all  of  the  circumstances  of  the  case.  Poor  men, 
as  a  rule,  have  settled  upon  the  arid  lands  of  this  State  and 
taken  them  under  the  laws  of  Congress,  many  of  them  under 
the  homestead  law,  and  are  able  to  clear  but  a  small  portion 
of  such  lands  of  sage  brush  from  year  to  year  and  put  it  in 
condition  for  raising  a  crop;  and  it  will  take  years  for  many 
of  them  to  prepare  their  entire  farms  for  cultivation  and  to 
make  application  of  the  water  appropriated  thereto.  A  de- 
cision that  would  defeat  persons  acting  in  good  faith  and  using 
reasonable  diligence  from  securing  the  full  benefit  of  the  water 
appropriated  would  be  most  unjust  and  inequitable.  In  the 
meantime,  however,  he  is  only  entitled  to  such  water  from 
year  to  year  as  he  puts  to  a  beneficial  use.  A  person  may  add 
from  year  to  year  acreage  to  his  cultivated  land  and  increase 
his  application  of  water  thereto  for  irrigation  as  his  necessities 
may  demand,  as  his  abilities  may  permit,  until  he  has  put  to 
a  beneficial  use  the  entire  amount  of  water  at  first  diverted  by 
him  and  conducted  to  the  point  of  intended  use."  ^ 

§  240.  Theory  of  "Equitable  Diyision"  of  Water  Con- 
troverted.— The  Court  in  the  case  of  Basey  vs.  Gallagher, ^ 
said:  "The  right  of  the  first  appropriator,  exercised  within 
reasonable  limits,  is  respected  and  enforced.  We  say  within 
reasonable  limits,  for  this  right  to  water,  like  the  right  by 

1  But  see  Cole  vs.   L,ogan  (Ore.).  ^  20  Wall.  760. 

33  Pac.  Rep.  568. 


§240]  NATURE  AND  EXTENT  01?  RIGHTS.  389 

prior  occupancy  to  mining  ground  or  agricultural  land,  is  not 
unrestricted.  It  must  be  exercised  vnth  reference  to  the  gen- 
eral condition  of  the  county  and  necessities  of  the  people." 
By  some  this  language  has  been  seized  upon  to  mean,  that  an 
equitable  if  not  an  equal  division  of  the  water  of  a  certain  source 
of  supply  among  all  needing  it  is  what  the  Court  intended,  re- 
gardless of  the  claim  of  the  prior  appropriator.  This,  however, 
we  do  not  think  to  be  the  rule  laid  down  by  the  decision.^ 

In  the  case  of  Kirk  vs.  Bartholomew  the  Supreme  Court 
of  Idaho  in  reversing  the  judgment  of  the  trial  Court  on 
this  interpretation  of  the  portion  from  the  opinion  quoted 
above  based  its  decision  upon  the  almost  universal  law  in  the 
arid  region  that  "he  who  has  the  prior,  has  the  superior 
right,"  and  said  :  "The  statutes  of  this  State  in  regard  to 
water-rights  evidently  did  not  meet  with  the  approval  of  the 
learned  judge  who  tried  this  case.  He  brushes  them  aside, 
and  evidently  undertakes  to  make  the  judgment  herein  con- 
form to  his  ideas  of  what  the  law  ought  to  be,  and  in  some 
future  time  to  make  it  conform  to  a  constitution  and  laws 
thereafter  to  be  adopted  and  enacted.  'As  between  appro, 
priators,  the  one  first  in  time  is  the  first  in  right.'  The  law 
is  thus  written.  The  law-making  power  only  has  the  right 
to  repeal  or  amend  it.  It  cannot  be  repealed  or  amended  by 
the  Court,  but  must  be  enforced  as  long  as  it  remains  the  law, 
even  if  harsh  and  unjust.  The  Court  below  should  have  de- 
termined the  amount  of  water  appropriated  for  a  useful  or  ben- 
eficial purpose  by  each  of  the  parties,  and,  in  case  any  of  the 
parties  were  not  the  original  appropriators,  the  Court  should 
have  determined  the  amount  of  water  appropriated  by  the 
party  from  whom  he  deraigned  title;  should  also  have  de- 
termined the  date  of  each  appropriation,  and  the  priority  of 
right  of  each  of  the  parties,  as  the  statute  directs,  to-wit:  'As 
between  appropriators,  the  one  first  in  time  is  the  first  in 
right.'  " 

1  See     dissentiii}^     <j])iiiioii    of  (juoted    in    opinion    l)y    Snprcinc 

Berry,  J,  in  the  case  of  Drake  vs.  Court  (hl.ilio),  2i)  I'ac.  Rt-p.  .Ji,  of 

Earhart  (Idaho),  23  I'ac.  Rep.  541.  Idaho  upon   reversal  of  tlic  jud«- 

And    also    judgment    of    District  nunt  of  tin-  Court  hilow. 
Court,  in   Kirk  vs.   Hartlioloniew, 


390  NATURE  AND  EXTENT  OF  RIGHTS.  [§241 

§  241.  Slime.— Basey  vs.  Gallagher  Construed  on  Subject.— 

A  construction  of  the  sentence  from  Basey  vs.  Gallagher 
quoted  above,  that  an  equitable  if  not  an  equal  division  of 
the  water  among  all  desiring  or  needing  it,  regardless  of  the 
claim  of  the  prior  appropriator,  was  intended  can  not  be  jus- 
tified. In  the  first  place  this  construction  would  be  inconsistent 
with  the  final  decision  of  the  Court  in  that  case,  which 
arose  out  of  a  controversy  between  several  parties  claim- 
ing the  water  of  a  certain  stream  for  irrigation  by  virtue  of 
their  having  at  different  dates  respectively  appropriated  it 
for  that  purpose.  The  Court  decided  in  favor  of  the  plaintiff, 
who  appropriated  the  water  first,  and  thus  affirmed  the  decree 
of  the  Supreme  Court  of  Montana,  which  had  granted  an  in- 
junction against  the  defendants  prohibiting  them  from  any 
diversion  of  the  water  from  the  stream. 

Neither  is  the  construction  consistent  with  other  decisions 
of  the  Supreme  Court  of  the  United  States. 

In  Jennison  vs.  Kirk^  the  Court  said:  "By  the  customary 
law  of  miners  in  California,  as  we  understand  it,  the  owner  of 
a  mining  claim  and  the  owner  of  a  water  right  enjoy  their 
respective  properties  from  the  dates  of  their  appropriations, 
the  first  in  time  being  the  first  in  right;  but  where  both  rights 
can  be  enjoyed  without  interference  with  or  material  impair- 
ment of  each  other  the  enjoyment  of  both  is  allowed."  Tak- 
ing the  converse  of  this  proposition,  it  means  when  both 
rights  can  not  be  enjoyed  without  interference  or  material  im- 
pairment of  each  other  the  enjoyment  of  the  first  will  only  be 
allowed,  since  he  being  first,  is  first  in  right. ^  From  these 
authorities  it  is  evident  that  all  the  Court  meant  by  the  lang- 
uage quoted  is,  that  the  first  appropriator  shall  not  be  allowed 
more  than  he  needs  for  the  purpose  for  which  he  uses  the 
water.  In  other  words  he  shall  not,  by  wasting  iL,  or  by  ap- 
propriating more  than  is  necessary  for  his  purpose,  deprive  his 
neighbor  of  what  he  has  not  actual  use  for.  It  clearly  follows, 
as  all  the  higher  Courts  have  certainly  held,  that  when  all 

1 98  U.  S.  461.  tion  of  this  section  b}'  the  Court 

2  .-.ee  also  ninth  section  of  Act  in  the  case  of  Atchison  vs.  Peter- 

of  Congress   of  July  26,   1866;   14  son,  87  U.  S.  507. 

Stat,  at  L.  253.  Also  the  construe- 


^  241,  242]       NATURE  AND  EXTENT  OF  RIGHTS. 


301 


can  not  use  the  water  without  injury  to  the  prior  appropriator 
the  subsequent  appropriator must  yiekl  to  his  superior  right.' 

§242.  Hilliiiaii  vs.  Ilarduick  et  al.-In  the  case  of  Hill- 
man    vs.    Hardwick   et   al.^the  evidence   showed   that   there 
was  about  eighty  or  one  hundred  inches  of  water  in  a  certain 
stream,  and  the  plaintiff  claimed  by  virtue  of  a  prior  appro- 
priation one  hundred  and  twenty -five   inches  of  water,   but 
despite  the  fact  that  his  claim  to  this  amount  and  his  actual 
application  of  all  of  the  water  to   a  beneficial   purpose  was 
proven,  the  trial  court  rendered  a  judgment  giving  the  defen- 
dants permission  to  divert  something  like  eight  hundred  inches 
over  and   above  the  amount  claimed   by  the  plaintiff.     The 
Supreme    Court   reversed    the  judgment  below,   and    in   the 
opinion  rendered  Mr.  Justice  Horton  said:     "We   then  liave 
this  anomalous  condition  of  affairs:     A  creek  or  stream  of 
water  flowing  one  hundred  inches  of  water,  with  appropria- 
tions of  that  water  to  the  amount  or  extent  of  eight  hundred 
inches  in  addition  to  the  prior  appropriation  by  the  plaintiff 
of  all  the  water  of  the  creek  and  its  tributaries.     To  the  ordi- 
nary mind  this  might,  and  perhaps  does,  present  a  somewhat 
difficult  problem  for  judicial  solution,  unaided  by  the  statutes; 
but  the  learned  district  judge  found  no  difficulty  whatever  in 
reaching  a  conclusion  as  unique  as  it  is  unprecedented.     We 
say   unprecedented,    because   this    question,    under   statutes 
identical   with  that  of  Idaho,  has  been  decided  so  often   in 
favor  of  the  prior  appropriator  that  it  has  been  generally  con- 
sidered both  by  professionals  and  profanes  as  a  settled  ques- 
tion; as  for  instance,  the  question  has  been  decided  up  to  1889 
twice  by  the  Supreme   Court  of  the  United  States,  seventeen 
times  by  the   Supreme  Court  of  California,  five  times  by  the 
Supreme  Court  of  Colorado,  six  times  by  the  Supreme  Court 
of  Nevada,  twice  by  the  Supreme  Court  of  Montana,  once  by 
the  Supreme  Court  of  New  Mexico,  twice  by  the  Supreme 
Court  of  Utah,  once  by  the  Supreme  Court   of  Oregon,  and 
repeatedly    by  the    Supreme    Court    of   Idaho;    in    fact    the 
decision  of  the  leanud    district    judge    in    this  case    Clauds 

ISee  Ante  Sections  225-227.      2(1,];, Iw,)  2H  I'.ic.  Kc-p.  .13.S. 


392  NATURE  AND  EXTENT  OF  RIGHTS.       [§  242,  243 

alone.  We  have  been  unable  b}^  the  most  diligent  search 
to  find  a  precedent  or  a  parallel  for  it.  Heroically  set- 
ting aside  the  statute,  the  decisions  and  the  evidence  in 
the  case,  he  assumes  the  role  of  Jupiter  Pluvius,  and  dis- 
tributes the  waters  of  Gooseberry  Creek  with  a  beneficent 
recklessness  which  makes  the  most  successful  efforts  of 
all  the  rain-wizards  shrink  into  insignificance,  and  which 
would  make  the  hearts  of  the  ranchers  on  Gooseberry  dance 
with  joy  if  only  the  judicial  decree  could  be  supplemented 
with  a  little  more  moisture.  The  individual  who  causes  two 
blades  of  grass  to  grow  where  but  one  grew  before  is  held  in 
highest  emulation  as  a  benefactor  of  his  race.  How  then  shall 
we  rank  him  who,  by  judicial  fiat  alone,  can  cause  four  hun- 
dred inches  of  water  to  run  where  nature  only  put  one  hun- 
dred inches  ?  (We  vail  our  faces,  we  bow  our  heads  before 
this  assumption  of  judicial  power  and  authority.)  *  *  * 
Evidently"  the  Court  assumed  that  Gooseberry  Creek  was  as 
inexhaustible  as  the  widow's  cruise,  or  else  that  its  decree 
possessed  the  potency  of  Moses'  rod.  All  the  provisions  of 
the  statute  in  regard  to  priority  of  right  incident  to  priority  of 
appropriation  are  ignored,  as  are  the  sources  and  volume  of 
supply." 

§  243.  Might  to  lleiuove  Obstructions  froui  Streiini  and 
Ditch. — An  appropriator  of  the  waters  of  a  natural  stream 
flowing  through  the  public  domain  acquires  a  right  as  against 
subsequent  purchasers  from  the  United  States  to  go  upon  the 
land  of  such  purchasers  or  their  grantees  higher  up  the  stream 
than  the  point  of  diversion  and  remove  obstructions  from  the 
bed  of  the  stream  so  as  to  cause  the  water  to  flow  in  its 
natural  channel  to  the  point  of  diversion  and  through  his 
canal  or  ditch  to  the  place  where  it  is  to  be  used,  as  it  was 
wont  when  he  first  made  the  appropriation.^  Also,  the  owner 
of  the  ditch  has  a  right  to  go  upon  the  lands  of  others  and 
remove  obstructions  from  the  ditch  itself.  The  prior  appro- 
priator by  the  construction  of  his  ditch  and  the  appropriation 
and  use  of  the  waters  of  the  stream  acquires  as  against  the 
subsequent  patentee  of  the  Government  as  complete  and  per- 

1  Ware  vs.  Walker,   70  Cal.  591. 


§243,244]       NATURE  AND  EXTENT  OF  RIGHTS.  393 

feet  a  right  to  maintain  his  ditch  and  to  have  the  water  flow 
to,  in  and  through  the  same  as  though  such  right  or  easement 
had  vested  in  him  by  grant  from  the  government  when  he 
made  his  appropriation.  Such  a  right  or  easement  carries 
with  it  an  implied  authority  to  do  all  that  is  necessary  to  re- 
ceive the  full  enjoyment  of  the  right  or  easement  itself.  ' '  The 
express  or  implied  grant  of  an  easement  is  accompanied  by 
certain  secondary  easements  necessary  for  the  enjoyment  of 
the  principal  one."^ 

If,  from  natural  causes,  the  stream  becomes  obstructed  by 
deposits  of  gravel,  fallen  trees,  or  any  other  substance,  so  as  to 
prevent  the  flow  of  water  to  the  head  of  the  appropriator's 
ditch  the  owner  of  the  soil,  as  the  servient  tenement,  is  under 
no  obligation  to  remove  these  obstructions  for  the  appropria- 
tor's enjoyment  of  his  right  to  the  water.  Hence  it  follows 
that  the  duty  of  making  the  repairs  essential  to  the  appro- 
priator's enjoyment  of  the  easement  devolves  entirely  upon 
himself.  In  the  exercise  of  this  right  to  remove  obstruc- 
tions the  appropriator  must  do  so  in  a  reasonable  and 
proper  manner  and  perform  such  acts  as  are  essential  to  his 
enjoyment  of  the  water  without  damage  to  the  owner  of  the 
land  through  which  his  ditch  runs.- 

§  244.  Repair  of  Ditches.— Not  only  has  the  prior  appro- 
priator the  right  to  enter  upon  another's  land  in  order  to 
remove  obstructions  from  the  stream  or  ditch  when  they  inter- 
fere with  his  right  to  the  flov.'  of  the  water  down  to  and  upon 
his  own  lands,  but  it  is  his  duty,  when  water  is  conducted 
through  a  ditch  passing  through  another's  land,  to  keep  the 
ditch  in  such  repair  that  the  water  will  not  pass  over  the  banks 
and  flood  or  injure  in  any  manner  the  lands  of  others.' 

IGale  &  Whatleyon  Kasements,  that:     "The    (luestion    of     uckIi- 

Am.    Ed.    215,    231;    Taylor     vs.  j^eiice  in  the  manj-.geiiicnt  of  such 

Whitehead,  2  Doug.  745.  property,   and   the   degree   of   it. 

2See  Prescottvs.  White,2i  Pick.  must     necessarily     depend    in    a 

341;  32  Am.  Dec.  266;  Prescott  vs.  great  measure  upon  the  surround- 

Williams,  5  Met.  429;  39  Am.  Dec.  ing  facts,    such    as    the    existence 

683  and    exposure    of  j)roi)erty  helow 

3See\Volf   vs.   St.  Ivouis  Water  the  dam  or  under  the  ditch  and 

Co.,  10  Cal.  541,  where  it  was  held  the  like,  for  what  under  one  state 


394 


NATURE  AND  EXTENT  OF  RIGHTS. 


[§244 


If  through  any  fault  or  neglect  of  the  owner  of  the  ditch  in 
not  properl}^  managing  and  keeping  it  in  repair  the  water  does 
overflow  or  break  through  the  banks  of  the  ditch  and  injure 
the  lands  or  property'  of  others,  either  by  washing  over  the 
soil,  covering  the  soil  with  sand,  flooding  crops,  or  doing  any 
other  injury  to  others,  the  law  holds  him  responsible  for  his 
negligence.^  If  the  ditch-owner  uses  a  ravine  or  natural  water 
course  as  a  part  of  his  ditch  he  is  not  responsible  for  injuries 
done  by  the  natural  waters  thereof,  but  only  for  such  overflow 
as  is  caused  by  his  use  of  the  water-course  as  a  part  of  his 
ditch. ^  He  is  bound  to  see  that  no  injury  results  to  others  in 
consequence  of  his  act;  and  if  injury  does  result  from  the  use 


of  facts  would  be  prudence  might 
under  a  different  condition  of 
things  be  gross  or  even  criminal 
negligence." 

Richardson  vs.  Kier,  34  Cal.  63; 
37  Cal.  263;  Robinson  vs.  Black 
Diamond  Coal  Co.,  57  Cal.  412;  50 
Cal.  460;  Chidester  vs.  Consoli- 
dated Ditch  Co.,  59  Cal.  197; 
Mathews  vs.  Kinsell,  41  Cal.  512; 
Campbell  vs.  Bear  River  Co.,  35 
Cal.  679;  Darst  vs.  Rush,  14  Cal. 
81;  Flickenger  vs.  Shaw,  87  Cal. 
T26. 

Crisnian  vs.  Heiderer,  5  Colo. 
589,  where  it  was  held  that  while 
one  may  have  the  right  to  enter 
the  bed  of  a  stream  above  his 
ditch,  and  to  remove  obstructions 
which  may  have  changed  or  ob- 
structed the  course  of  the  current 
so  as  to  prevent  the  water  from 
entering  his  ditch,  and  has  im- 
plied authority  to  do  all  that 
should  become  necessary  to  se- 
cure the  benefit  of  the  appropria- 
tion of  the  water  and  may  acquire 
an  easement  in  the  adjoining  land, 
yet  the  right  thus  acquired  must 
be  held  to  the  narrowest  limits 
compatible  with  the  enjoyment  of 
the  principle  easement,  which  is 


the  right  to  use  the  water.  The 
most  reasonable  mode  of  effecting 
the  object  must  be  adopted.  The 
controlling  principle  is  that  the 
water  shall  be  diverted  in  such  a 
manner  as  not  to  damage  or  seri- 
ously endanger  the  lands  of  own- 
ers upon  the  margin  or  banks  of 
the  stream. 

See  also  McCauley  vs.  IMcKeig, 
8  Mont.  389. 

llbid.  Broom's  Legal  Maxims, 
329;  Hoffman  vs.  T.  W.  Co.,  10 
Cal.  416;  Wolf  vs.  St.  Louis  Ind. 
Co.,  10  Cal.  344;  Turner  vs.  Tuo- 
lumne W.  C,  25  Cal.  403. 

-  Richardson  vs.  Kier,  34  Cal.  63, 
in  which  Judge  Sanderson  stated 
upon  the  question :  ' '  He  is  bound 
to  keep  it  in  good  repair,  so  that 
the  water  will  not  break  through 
or  overflow  its  banks  and  destroy 
or  damage  the  lands  of  other  par- 
ties; and  if,  through  an}-  fault  or 
neglect  of  his  in  not  properly 
managing  and  keeping  it  in  repair, 
the  water  does  overflow  or  break 
through  the  banks  of  the  ditch 
and  injure  the  land  of  others, 
either  by  washing  away  the  soil  or 
b}?  covering  the  soil  with  sand,  the 
law  holds  him  responsible." 


§  244,  245J       NATURE  AND  EXTENT  OF  RIOHTS. 


395 


of  any  ravine,  either  through  his  necessity  or  convenience  in 
using  the  same,  he  is  liable  for  all  damages  thereby  caused.' 
It  makes  no  difference  in  this  respect  whether  the  appro- 
priator  or  the  owner  of  the  lands  who  was  injured  has  the 
prior  right  of  title.  The  appropriator  is  bound  in  the  con- 
struction and  maintainauce  of  his  dam,  ditches  and  other 
works  to  so  construct  and  maintain  them  as  discreet  and  pru- 
dent men  ordinarily  do  or  should  do  in  such  cases,  where 
their  own  interests  are  to  be  affected. - 

§345.  Injuries  to  Ditches  by  Owner  of  Lund.— A  prior 
appropriator  has  an  easement  over  the  lands  of  the  subsequent 
patentee  of  the  government  of  the  right-of-way  for  his  ditch; 
and  to  this  easement  the  appropriator  has  a  property  right 
that  the  patentee  cannot  invade,  from  the  fact  that  he  takes 
his  title  to  the  land  subject  to  the  appropriator's  rights.-''  It 
is  well  settled  that  all  parties  whose  rights  accrued  subsequent 
to  those  of  the  appropriator  will  be  not  only  restrained  from 
interfering  with  and  from  destroying  or  washing  away  the 
ditch  belonging  to  another  person  who  claims  his  right  in  and 
to  the  same  by  virtue  of  priority,  but  they  will  al.so  be  liable 
in  damages  for  any  injuries  they  may  have  caused 
through  their  negligence  in  iuvadiiig  the  property  riglits  of 
the  appropriator."* 

This  doctrine  is  affirmed  in  Wolf  ter  XL,    Sees.    324-329.     Clark  vs 

vs.  vSt.  Louis  W.  Co.,   10  Cal.  541;  Willett,  35  Cal.  534. 
Robinson  vs.  Black  Diamond  Coal  Gregory  vs.  Nelson,  41  Cal.  278, 

Co.,  50  Cal.  460:  Darstvs.  Rush,  14  wliere  it  was  held  that  if  a  party 

Cal.  81;   Campbell  vs.  Bear  River  owns  a  ditch   and  a  right  of  way 

Co.,  35  Cal.  679;  Mathers  vs.  Kin-  for  the  same  to  conduct  water  for 

sal,  41  Cal.  513.  mining  purposes,  and  has  acquired 

^  Ibid.  such  right  by  priority  of  location, 

^Hoffman     vs.   Tuolomne,    etc.,  the  Court  should  not,  in  an  action 

Co.,  10  Cal.  413;  Wolf  vs.  St.  Louis,  to    enjoin     another     party     from 

etc.,  Co.,  10  Cal.  541.  washing   away     the   ground    over 

3 See  ninth  Section  Act  of  Con-  which  it  passes,   liniil  the  i)laint- 

gress,  July  26th,  1866;  Crisman  vs.  iff's    right    by    alhjwing    the  de- 

Heiderer,  5  Colo.  589.  fendant  to  wash  away  the  »Iitch  if 

4  This  subject  will  be  more  Ihor-  he  builds  a  flume  or  other  nquc- 

oughly  discussed  under   the  title  duct  in  place  of  the  ditch,  of  fuf- 

of  "  Legal  .Remedies."    Sec  Chap-  ficient  cjii)a(ity  to  tarry  the  water 


396  NATURE  AND  EXTENT  OF  RJGHTS.       [§245,246 

If  one  owns  a  ditch  and  right-of-way  for  same  a  Court  of 
equity  has  no  authority  by  its  judgment  to  allow  the  ditch  to 
be  washed  away  for  mining  purposes,  even  after  providing 
that  such  portion  of  the  ditch  as  might  be  destroyed  should 
be  replaced  by  a  metal  pipe  or  flume  which  would  answer  all 
purposes  of  the  ditch.  The  Court  should  not  license  a  tres- 
pass on  such  property,  or  compel  the  owner  thereof  to  ex- 
change the  same  for  other  property  for  the  convenience  of  a 
private  person.^ 

§  246.  Api)ropriiitoi's lliglit  to  Use  Natural  Bed  of  Stream 
to  Convey  the  Water. — One  of  the  most  essential  elements 
of  a  valid  appropriation,  based  as  that  appropriation  is  upon 
a  mere  possessory  right,  is  that  there  shall  be  an  actual  diver- 
sion of  the  water  from  the  natural  stream.^  But  the  authori- 
ties hold,  that  after  the  water  has  once  been  diverted  from  its 
natural  channel  it  may  be  turned  back  into  the  stream  from 
which  it  was  originally  taken  and  be  recaptured  at  a  point  below 
by  the  appropriator,  provided  the  rights  of  others  are  not  in- 
juriously affected  thereby;  thus  using  the  natural  stream  for 
the  time  being  as  a  canal  for  conducting  the  water  to  a  lower 
point  upon  the  same.^ 

and  give  bond  to  pay  the  damages  Under  the  Act  of  Congress  of 
sustained  thereby.  July  26th,  1866,  one  has  a  right  to 
The  question  of  injunction  was  construct  a  ditch  across  the  public 
discussed  in  Atchison  vs.  Peter-  lands  of  the  United  States,  sub- 
son,  20  Wall.  507,  and  the  Court  ject  only  to  the  liability  of  paying 
held  that:  "Whether  a  court  of  for  any  damage  to  the  possessions 
equity  will  interfere  to  restrain  of  a  settler  on  the  lands, 
acts  claimed  to  be  injurious  to  Hobart  vs.  Ford,  6  Nev.  77; 
the  rights  of  a  prior  appropriator  vShoemaker  vs.  Hatch,  13  Nev.  261. 
of  water  will  depend  upon  the  l  Gregory  vs.  Nelson,  41  Cal. 
character  and  extent  of  the  injury  278. 

alleged, whether  it  be  irremediable  2  Ante   Chapter   VI,    Sees.     162, 

in  its  nature,  whether  an  action  at  163  and  cases  cited;  Parks  Canal 

law    would    afford    an     adequate  Co.  &  M.  C.  vs.  Hoyt,  57  Cal.  44; 

remedy,  whether  the  parties  are  Kidd  vs.  Laird,  15  Cal.  162. 

able  to  respond  for  the  damages  3  Richardson    vs.    Kier,    37   Cal. 

resulting    from    the    injury,  and  263;  Butte  Canal  Co.  vs.  Vaughn, 

other  considerations  which  ordi-  11  Cal.  143;  Brown  vs.  Mullin,  65 

narily  govern  a  court  of  equity  in  Cal.  89;  Schultz  vs.  Sweeney,    19 

the  exercise  of  its  preventive  pro-  Nev.  359. 

cess  of  injunction." 


§246] 


NATURE  AND  EXTEXT  OF  UKiHTS. 


397 


In  a  case  decided  by  tlie  Supreme  Court  of  Oregon  in 
1891,^  the  Court  said  on  this  point:  "As  there  must  bean 
actual  diversion  of  the  water  from  its  natural  channel  by 
means  of  a  ditch  or  other  structure  to  affect  the  appropriation, 
any  dry  ravine,  gulch,  or  hollow  in  the  laud  may  be  used  for 
this  purpose  as  a  part  of  the  ditch  for  conducting  the  water. 
Not  only  may  these  be  used  by  the  appropriator  as  a  part  of 
his  ditch,  but  he  may  use  the  lower  portion  of  the  bed  or 
channel  from  which  the  water  is  taken."- 

If,  however,  a  person  causes  water  appropriated  by  him  to 
be  discharged  back  into  the  stream  from  which  it  was  taken, 
and  thus  mingles  it  again  with  the  waters  of  the  stream  as  a 
matter  of  convenience,  the  burden  of  proof  is  upon  him  in  all 
controversies  concerning  his  right  to  establish  the  absence  of 
intent  to  abandon  the  water. -^ 

If  the  stream  is  a  mere  torrent,  dry  at  certain  seasons  of  the 
year,  it  may  also  be  used  as  a  part  of  a  ditch  to  conduct  waters, 
and  such  use  does  not  work  as  an  abandonment  of  such  waters 
so  conducted,  although  it  gives  no  right  to  divert  or  use  the 
natural  water  of  the  stream  as  against  any  prior  appropriator 
of  the  same.^ 


1  Simmons  vs.  Winters,  27  Pac. 
Rep.  9. 

2  Citing  Pomeroy  Riparian  Rights 
Section  48. 

:^  Butte  Canal  Co.  vs.  Vaughn,  11 
Cal.  143;  Wilcox  vs.  Hausch,  64 
Cal.  461;  Hoffman  vs.  Stone,  7  Cal. 

47- 

Also  see  case  of  Schultz  vs. 
Sweeney,  19  Nev.  359,  where  it 
was  held  that  in  a  case  where 
water  had  been  discharged  into  a 
natural  stream  as  a  matter  of  con- 
venience, and  for  the  purpose  of 
getting  rid  of  the  water,  without 
any  intention  of  reclaiming  it,  it 
becomes  part  of  the  waters  of  the 
natural  stream,  and  is  subject  to 
the  same  rights  as  the  water 
naturally  flowing  therein. 


^Hoffman  vs.  Stone,  7  Cal.  46; 
Burnett  vs.  VVhitesides,  15  Cal.  35; 
Anaheim  W.  Co.  vs.  vSenii-Tropic 
W.  Co.,  64  Cal.   185. 

One  who  obtains  from  another, 
who  has  the  right  to  conduct 
through  a  natural  stream  waters 
artificially  carrie<l  to  it,  a  license 
to  remove  obstructions  in  the 
stream  and  to  turn  water  into  it 
for  his  own  use  is  not  enlilleil  to 
take  out  more  water  than  lie  turns 
into  it,  to  the  prejudice  of  the 
rights  of  the  other  parly  who  is 
the  lower  owner.  Paige  vs.  Rocky 
Ford  Canal  &  Ir.  Co.,  83  Cal.  84;  21 
Pac.  Rep.  1 102,  afllrmeil  on  re- 
hearing, 83  Cal.  84;  23  Pac.  Rep. 
875.     Also  see  4  Pac.  Rep.  1152. 


398  NATURE  AND  EXTENT  OF  RIGHTS,  [§  247 

§  217.  Point  Wliere  Property  Right  of  Appropriator 
Begins. — The  right  of  the  prior  appropriator  to  have  the 
water  flow  in  the  stream  to  the  head  of  his  ditch  is  an  incor- 
poreal hereditament  appurtenant  to  his  ditch  and  co-extensive 
with  his  right  to  the  ditch  itself.^  The  appropriator  can  have 
no  property  rights  in  or  to  the  water  itself  until  it  enters  his 
ditch  from  the  natural  stream,  yet  the  right  to  have  it  flow 
into  the  same  appertains  to  the  ditch  itself.  That  the  appro- 
priator can  have  no  property  whatever  in  the  water  of  a 
stream  while  it  is  flowing  in  its  natural  channel  or  bed,  and 
before  it  reaches  the  head  or  commencement  of  his  ditch, 
where  the  water  is  diverted  from  the  stream,  is  one  of  the 
doctrines  of  the  Pacific  States  which  may  be  considered  well 
settled.^ 

Upon  this  question  Mr.  Justice  McKinstry,  in  giving  the 
opinion  of  the  Supreme  Court  of  California  in  the  case  of  Parks 
Canal  &  Mining  Co.  vs.  Hoyt,-^  said:  "  For  the  purposes  of 
this  decision  it  may  be  admitted  that  water  acquired  by  ap- 
propriation (to  be  sold  to  miners  and  others),  by  means  of  a 
ditch  leading  from  a  natural  stream,  becomes  after  it  has 
passed  into  a  ditch  the  personal  property  of  the  appropriator. 
Further,  it  may  be  admitted  that  if  water  be  taken  or  diverted 
from  the  ditch  without  the  consent  of  the  appropriator  he 
may  waive  the  tort  and  bring  an  action  for  the.  value  of  the 
water  taken.  Nevertheless,  although  such  appropriator  may 
be  entitled  to  the  flow  of  the  stream,  undiminished,  the  water 
in  the  stream  above  his  ditch  is  not  his  personal  property. 
The  stream  as  yet  flows  in  its  natural  course — a  part  of  the 
realty.  The  appropriator  certainly  does  not  become  the 
owner  of  the  very  body  of  the  water  until  he  has  acquired 
control  of  it  in  conduits  or  reservoirs  created  by  art  or  applied 
to  the  purpose  of  leading  or  storing  water  by  artificial  means. 
It  follows  that  he  cannot  maintain  an  action  for  the  value  of 

1  Lower  Kings  etc.  Co.  vs.  Kings  286;  Los  Angeles  vs.  Baldwin,  53 

R.  etc.  Co.,  60  Cal.  408.  Cal.  469;  Parks  Canal  &  M.  Co.  vs. 

SOrtmanvs.  Dixon,   13  Cal.  33;  Hoyt,  57  Cal.  42;  Lower  Kings  etc. 

Kidd  vs.  Laird,  15  Cal.  161;   Mc-  Co.  vs.  Kings  R.  etc.  Co.,  60  Cal. 

Donald   vs.    Askew.   29   Cal.    200;  40S. 

Nevada  etc.  Co.  vs.  Kidd,  37  Cal.  3  57  Cal.  46. 


§247,24:8]       NATURE  AND   EXTENT  OF  RIGHTS.  3<J9 

the  water — as  for  personal  property  sold  and  delivered— 
against  one  who,  without  his  consent,  has  diverted  the  stream 
above  the  mouth  of  his  ditch." 

Also  in  the  case  of  Los  Angeles  vs.  Baldwin,'  where  it  ap- 
peared that  the  plaintiff  had  acquired  the  right  to  appropriate 
the  entire  water  of  the  Los  Angeles  river,  the  Court  held 
that  the  city  did  not  own  the  corpus  of  the  water  while  flow- 
ing in  the  river. - 

§  248.  Point  of  Diversion  Mii.v  be  (.hiin|;;eil.-  Where  an 
appropriation  has  been  once  legally  efifected  and  the  quantity 
of  water  the  approi)riator  is 'entitled  to  divert  has  been 
determined  he  may  take  out  the  same  at  any  point  in  the 
stream.  He  may  change  the  point  of  diversion  at  pleasure, 
provided  the  rights  of  others  are  not  injuriously  affected  by 
the  change.-^  The  authorities  upon  the  subject  hold,  as  will 
be  seen  upon  examination,  that  in  all  cases  the  effect  of  the 
change  upon  the  rights  of  others  is  the  controlliiig  considera- 
tion; and  that  in  the  absence  of  injurious  consequences  to 
others  any  change  the  prior  appropriator  desires  to  make 
in  this  respect  is  legal  and  proper.'' 

In  a  very  recent  case  in  California,  ofRamelli  vs.  Irish,'' 
the  Court  held :  That  a  person  entitled  to  the  use  of  the  waters 
of  a  stream  by  appropriation  may  change  the  place  of  diver- 
sion or  the  place  where  it  is  used,  or  the  use  to  which  it  was 
first  applied,  if  others  are  not  injured  by  such  change.''  Upon 
the  other  hand,  one  entitled  to  divert  a  (juantity  of  water  from 

1  53  Cal.  469.  Ct).  vs.  Kidd;  37  Cal.  311 ;  Junkaiis 

-  See  also  Kidd  vs.  Laird,  15  Cal.  vs.  Hergcn,  67  Cal.  270;  7  Pac.  Ri-j). 

161;  Butte  T.  M.  Co.  vs.  Morgan,  684;  Sieber  vs.  l-rink,  7  Colo.  148; 

19  Cal.  616;  McDonald  vs.  Askew,  2  Tac.  Rep.  901;  Hobart  vs.  Wicks. 

29  Cal.  206;  N.  C.  &  S.  C.  Co.  vs.  15  Nev.  418;  Davis  vs.  Gale,  32  Cal. 

Kidd,  37  Cal.  311.  26;  Ware  vs.  Walker,  70  Cal.  591; 

3 Kidd   vs.    Laird,    15   Cal.     J63;  12  I'ac.  Rep.  475;  Iniller  vs.  Swau 

Greer  vs.  Ileiser,  14  Colo.  306;  26  River  M.  Co.,  12  Colo.   12:   19  I'ac. 

Pac.  Rep.  770;  Butte  T.  M.  Co.  vs.  Rep.  836. 

Morgan,  19  Cal.  616;  vStrickler  vs.  •*  Ibid. 

Colorado    vSpgs.,    16   Colo.    61.    26  fu/j  Cal.  214;  31  I'm.  Ki|>.  .|i. 

Pac.     Rep.    313;      McDonald      vs.  "  vSce  also  Gallnj^lii  r  vs    Monte- 

Askew,  29  Cal.  206;  N.  C.  &  S.  C.  cito,  etc.,  Co.,  35  Pac.  Kcj).  770. 


400  NATURE  AND  EXTP:NT  OF  RIGHTS.       [§248,  249 

a  stream  can  not  change  the  point  of  diversion  if  by  such 
change  the  rights  of  other  appropriators  are  injuriously  af- 
fected.^ 

§  241).  Right  to  Xutura!  Flow  of  Water  at  Head  of  Ap- 
propriator's  Ditch. — Although,  as  we  have  seen  in  a  previous 
section,-  the  appropriator  has  no  propert}'  in  the  water  of  the 
stream  flowing  in  its  natural  channel  above  the  head  of  his 
canal— the  point  of  diversion — yet  b}'  virtue  of  his  prior  ap- 
propriation he  acquires  a  most  important  legal  and  equitable 
right  over  or  with  respect  to  such  water.  The  right  of  the 
prior  appropriator  to  have  the  water  continue  to  flow  in  its 
usual  manner  through  its  natural  channel  or  bed  down  to  the 
head  of  his  ditch — -the  point  of  diversion  where  his  own  actual 
property  rights  in  and  to  the  same  commences — to  the  extent 
of  his  appropriation,  without  diversion  or  interruption  by 
others  claiming  subsequent  to  him,  is  an  incorporeal  heredita- 
ment appurtenant  to  the  ditch  and  co-extensive  with  the  ap- 
propriator's  right  to  the  ditch  itself.'^  He  has  the  right  to  in- 
sist that  the  water  continue  to  flow  as  it  did  when  he  first 
made  the  appropriation.  A  mere  temporary  or  trivial  irregu- 
larity in  the  flow  of  the  water  in  the  stream,  such  as  does  not 
cause  actual  injury  to  the  prior  appropriator,  will  not  be  ac- 
tionable; but  if  a  sensible  or  positive  injur}^  is  caused,  such 
as  would  interfere  with  the  water-right  of  the  appropriator, 
an  action  will  lie,  not  only  to  recover  damages,  but  also  to 
enjoin  the  future  commission  of  the  wrong.  The  first  ap- 
propriator of  the  waters  of  a  stream  passing  through  the 
public  lands  has  the   right   to  insist  that  the  water  shall  be 

1  Butte  T.  M.  Co.  vs.  Morgan,  9  Askew,  29   Cal.    200;   Phoenix  W. 

Cal.  609;  Nevada  W.  Co.  vs.  Pow-  Co.  vs.  Fletcher,  23   Cal.  481;  Na- 

ell,  34  Cal.  109;  Columbia  Mfg.  Co.  toma    Water   Co.   vs.    McCoy,    23 

vs.  Holter;  i  Mont.   296;    Simpson  Cal.  490:    Kick!   vs.  Laird,   15  Cal. 

vs.  Williams,  18  Nev.  432;  Wool-  161;    Barnes  vs.    Sabron,    10  Nev. 

man  vs.  Garringer,  i  Mont.  535.  217;  Pomeroy  on  Riparian  Rights, 

3  Ante  Section  247.  Section  60;   Mokelomne    Hill  Co. 

3  Lower  Kings  R.  W.  D.  Co.  vs.  vs.  Woodbury,    10  "Cal.  187;   Pilot 

Kings    River,    etc.,    Co.,    60    Cal.  Rock  Creek  Co.   vs.  Chapman,  11 

408;  Parks   Canal   &   M.    Co.    vs.  Cal.  162;  Bear  River  &  Auburn  W. 

Hoyt,  57   Cal.   44;    Reynolds    vs.  &  M.  Co.  vs.  New  York  M.  Co.,  8 

Hosmer,  51  Cal.  205;  McDonald  vs.  Cal.  327. 


§  249,  250]      NATURE  AND  EXTENT  OF  RIGHTS.  40 1 

subject  to  his  use  and  enjoyment  to  the  extent  of  his  orii^inal 
appropriation.^ 

In  the  case  of  Natoma  Water  &  M.  Co.  vs.  McCoy-  it  was 
held  that:  The  owners  of  a  ditch  by  which  the  waters  of  a 
stream  had  been  first  appropriated  are  entitled  to  recover 
damages  for  injury  or  loss  sustained  as  a  result  of  the  erec- 
tion of  dams  or  other  obstructions  on  the  stream  above  the 
head  of  the  ditch  by  which  the  regularity  of  the  flow  of  its 
waters  is  so  disturbed  as  to  cause  actual  injury  or  loss  to  the 
proprietors  of  the  ditch. '^ 

§  250.  Pollution. — The  prior  appropriator  has  the  right  to 
insist  as  against  the  acts  of  those  subsequent  to  him  that  the 
water  flow  down  to  the  head  of  his  ditch  undeteriorated  in 
quality  as  well  as  undiminished  in  quantity,  as  it  was  when 
he  first  made  the  appropriation,  if  the  deterioration  injures 
the  water  for  the  purpose  for  which  the  first  person  made  the 
appropriation.  This  rule  is  applied  to  a  case  in  which  saw 
dust  from  a  mill  is  thrown  into  a  stream;'*  also,  to  corrupting 
the  water  by  mining  operations,  by  mixing  the  water  with  mud, 
sediment  or  injurious  mineral  substances;''  also,  to  throwing 
dead  animals  in  the  water;'*  also,  to  operating  a  tan  yard  in 
such  close  proximity  to  the  stream  that  the  drainage  runs  into 
it;"  and,  in  general,  to  casting  sewage  and  waste  material  in 
it,  if  it  thereby  cause  material  injury  to  the  rights  of  the  prior 
appropriators.  Any  use  of  the  stream  which  defiles*  or  cor- 
rupts it  to  such  a  degree  as  to  essentially  impair  its  pnrit}' 

i  Phoenix  W.  Co.  vs.  Fletcher,  23  priator.     Phoeni.\    Water   Co.  vs. 

Cal.  482;  Natoma  Water   Co.   vs.  Fletcher,  23  Cal.  4S1. 

McCoy,  23  Cal.  491 ;  Hill  vs.  vSinith,  ^  Phoenix  Water  Co. vs.  Fletcher, 

27  Cal.  482.  23  Cal.  482;  Lewis  vs.  Stein,  16  /Ma. 

223  Cal.  491.  218. 

3  One  who  enters  upon  a  stream  s  Bear  River  &  Auburn  W.  &  M. 

of    water    and     erects    hydraulic  Co.    vs.   New   York  M.  Co.,8Cnl. 

works  above  the  prior  appropria-  327;    Hill   vs.    Kin^,    8    Cal.    336; 

tor  must  so  construct  them  as  not  Mayor  vs.  Chadwick,    11   A.  &  l\. 

to    impair    the    regularity  of   the  571. 

flow  of   the  water,  if  its   irregular  ''Tate  vs.  Parish,  7  Monroe-,  325. 

flow  would   injure  the  first  ai)i)ro-  7  Howell    vs.    .McCoy,   3    Rawle, 

256. 


402  NATURE  AND  EXTENT  OF  RIGHTS.  [§  250 

and  usefulness  for  any  of  the  purposes  to  which  the  water  is 
applied  by  the  prior  appropriator  is  an  invasion  of  the  private 
rights,  for  which  he  is  entitled  to  a  relned3^l 

But  the  natural  right  of  an  appropriator  to  have  the  stream 
descend  to  him  in  its  pure  state  must  yield  in  a  reasonable 
degree  to  the  rights  of  those  who  have  located  above  upon 
the  stream  subsequent  to  him.  This  is  especially  true  where 
the  object  of  his  appropriation  is  that  of  irrigation,  as  it  is  of 
public  importance  that  the  proprietor  of  useful  manufactories 
should  be  held  responsible  only  for  substantial  injury  caused 
by  their  works,  and  not  for  slight  inconveniences  or  occasional 
annoyances,  or  even  some  degree  of  interference  with  irriga- 
tion or  agricultural  pursuits. ^ 

As  the  population  grows  more  dense  along  the  streams  in 
the  arid  west  it  is  becoming  more  and  more  an  impossibility 
to  keep  the  water  of  the  streams  in  their  naturally  pure 
condition.  And  when  an  injunction  is  sought  to  stop  large 
and  expensive  works,  which  cause  the  waters  of  a  stream  to 
be  polluted,  it  must  clearly  appear  that  the  legal  remedy  of 
the  prior  appropriator  is  entirel}'  inadequate,  and  that  he  will 
suffer  irreparable  injury  from  the  continuance  of  the  pollu- 
tion to  such  an  extent  that  his  vested  rights  are  in  jeopardy. 

1  Hill  vs.  Smith,  27  Cal.  476;  32  583;  McGenness  vs.  Adriatic  Mills, 

Cal.   166;     Crane    vs.    Randall,    2  116   Mass.    177;    Richmond    Mfg. 

Utah,  248.  In  general,  as  to  pollu-  Co.  vs.    Atlantic  De  Laine  Co.,  10 

tion    of    streams,  see    Mason   vs.  R.  I.  106;  Lewis  vs.  Stein,  16  Ala. 

Hill,  5  B.  &  Ad.  i;  3  B.  &  Ad.  304;  214;    O'Riley    vs.    McChesney,   3 

2  Nev.  &  Man.    747;    Embrey  vs.  Lans.  278;  49  N.  Y.  672;  Gladfelter 

Owen,    6    Exch.    153;    Wood   vs.  vs.  Walker,  40  Ind.  i;  Holsman  vs. 

Waud,   3   Exch.    748;    Bealey  vs.  Boiling  Springs  Bleaching  Co.,  14 

Shaw,  6  East.  208;  Aldred's  Case,  N.  J.  Eq.  335;  Potter  vs.  Fremont, 

9  Co.   59;   Tenant  vs.   Goldwin,  2  47   Cal.  165;  Sanderson  vs.  Penn. 

Ld.  Raym.   1089;    Salk.  21,  360;  6  Coal  Co.,   86   Penn.    St.   401;   102 

Mod.  311;  Holt,   500;  Stonehewer  Penn.  St.  370;  Mitchell  vs.  Barry, 

vs.  Farrar,  6  O.   B.  730;  Lingvvood  26  Q.  B.  (Can.)  416. 

vs.  Stonemarket  Co.,  L.  R.  i.  Eq.  2  people  vs.  Rogers,  12  Colo.  278; 

77;  Buccleuch  vs.   Cowan,  2  App.  20  Pac.  Rep.  702;  Haskell  vs.  New 

Case,  344;  Merrifield  vs.  Lombard,  Bedford,  loS  Mass.  208,  214;  Hayes 

13     Allen,      16;      Woodward      vs.  vs.  Waldron,  44  N.  H.  580;  Smith 

Worcester,  121  Mass.   245;  Dwight  vs.  Barnham,  i   Ex.   D.  419;  Pren- 

Printing  Co.  vs.  Boston,  122  Mass.  tice    vs.    Geiger,    74    N.    Y.    341; 


§251]  NATURE  AND  EXTENT  OF  RIGHTS.  403 

§251.  Same.— Authorities  on  Subject.— In  all  controver- 
sies caused  by  the  pollution  of  the  water  by  subsequent  loca- 
tors the  question  to  be  determined  is,  has  the  prior  appropri- 
ator's  use  and  enjoyment  of  the  water  for  the  purpose  for 
which  he  appropriated  and  applies  it  been  materially  impaired 
by  the  acts  of  the  subsequent  locators.  What  deterioration 
in  quality  will  injuriously  affect  the  use  of  the  waters  of  the 
appropriator  is  a  question  of  fact  depending  upon  the  circum- 
stances of  each  particular  case.  It  may  be  that  in  some  cases 
a  slight  deterioration  of  the  quality  of  the  water  will  impair 
its  use  for  the  purpose  to  which  the  appropriator  applies  it; 
and  again  it  maj^  be  that  such  use  would  not  be  impaired  by 
a  very  considerable  pollution  of  the  quality  of  the  water.  The 
question  must  be  determined  in  view  of  the  7isc  to  whicJi  the 
water  is  applied,  the  nature  and  extent  of  the  deterioration, 
and  all  the  other  circumstances  connected  with  each  particu- 
lar case.^  It  follows  therefore  that  a  greater  amount  of  deter- 
ioration will  be  permitted  where  the  appropriator  applies  the 
water  merely  to  irrigation  than  where  the  water  is  used  for 
household  and  domestic  purposes.  For  instance,  the  sewage 
of  cities  is  considered  exceedingly  beneficial  to  vegetation, 
but  it  pollutes  the  water  to  such  an  extent  as  to  render  it 
absolutely  worthless  and  positively  injurious  for  household  and 
domestic  purposes.  Some  mineral  solutions  are  beneficial  to 
vegetation,  while  on  the  other  hand  others  contain  in  solution 
chemical  poisons  which  are  destructive  to  both  animal  and 
vegetable  life.  So,  if  from  the  facts  in  any  case,  the  appro- 
priator is  benefitted  instead  of  injured  by  the  pollution  of  the 
waters  it  stands  to  reason  that  no  action  will  lie.  In  an  early 
California  case  -  bearing  upon  this  subject  it  was  held  that: 
"  As  to  the  deterioration  in  quality,  the  injury  should  be  con- 
sidered as  an  injury  without  consequent  damage."      Hut  this 

9  Hun.  350;    O'Riley  vs.    McCbes-  Cator    vs.     Lewishain     Ho.inl     of 

ney,  49   N.  Y.   672;    3   Laiis.    278;  Works,  5  B.  &  vS.  143. 

Thomas   vs.    Brackney,    17   Barb.  1  Pliocnix  Water  Co.  vs.  I'lelcher, 

654;     Palmer     vs.      Mulligan,      3  23  Cal.  4.S3;  Ilill  vs.  Smith,  27  Cal. 

Caines,  307;  Honsee  vs.  Hammond,  476;    Courlwrighl  vs.   B.  R.  iSi  W. 

39  Barb.  89;  Ridge  vs.  Midland  Ry.  M.  Co.,  30  Cal.  5S5. 

Co.,    53   J.    P.  55;    Merrifield   vs.  2near  River  W.  Co.  vs.  N.  V.  M. 

Worcester,     no    Mass.    221,     222;  Co.,  8  Cal.  327. 


404  NATURE  AND  EXTENT  OF  RIGHTS.       [^  251,  252 

rule  has  been  modified  to  a  great  extent  in  later  cases  both  in 
that  and  other  States  and  Territories  of  the  arid  west,  from 
the  fact  that  if  there  is  a  material  injury  suffered  b}'  the  appro- 
priator  it  would  be  entirely  antagonistic  to  the  maxim  adopted 
by  the  various  vStates:  ''  Qui  prior  est  in  tempore,  potior  est  in 
purer 

In  the  case  of  Hill  vs.  Smith  ^  the  Court  evidenth-  aban- 
doned the  decision  in  the  case  cited  above,  and  seems  to  have 
held  almost  to  the  other  extreme:  "As  between  ditch  owners 
and  miners  using  the  waters  of  a  stream  in  mineral  regions  for 
mining  purposes  the  law  does  not  tolerate  miy  injjiry  by  one 
to  the  prior  rights  of  the  other."  But  the  Court  also  said  at 
the  conclusion  of  the  opinion:  "  So  that  in  all  controversies 
like  the  present  the  question  to  be  determined  after  all  is  the 
same  as  that  presented  h\  a  like  controversy  between  riparian 
proprietors,  to-wit:  Has  the  plaintiff's  use  and  enjoyment  of 
the  water ybr  the  purposes  for  ichich  he  claivis  its  use  been  im- 
paired by  the  acts  of  the  defendant  ?  This  is  purely  a  ques- 
tion of  fact  for  the  jury,  and  all  the  law  applicable  to  it  is 
found,  as  stated  by  the  learned  counsel  for  appellants,  in  the 
case  of  Phoenix  Water  Co.  vs.  Fletcher  (23  Cal.  483),  em- 
braced in  the  three  following  maxims:  Qui  prior  est  in  tem- 
pore potior  est  in  jure  ;  Ubi  J2is  ibi  remediuin  ;  Sic  utere  iuo  tit 
aliemun  non  laedas  ;  and  beyond  these  principles  they  do  not 
require  to  be  instructed.  What  diminution  in  quantity  or 
what  deterioration  in  quality  will  injuriously  affect  the  use 
of  the  water  by  the  plaintiff  ma}^  be  safeh^  left  to  the  deter- 
mination of  the  jury,  guided  only  by  the  foregoing  maxims. 
It  ma}'  be  that  a  slight  diminution  or  deterioration  will  impair 
his  use  of  the  water,  and  it  may  be  that  such  use  would  not 
be  impaired  by  a  very  considerable  reduction  in  quantity  or 
quality.  The  question  must  be  determined  in  view  of  the  use 
to  which  the  water  is  applied  and  the  other  circumstances 
developed  b}'  the  testimon}^" 

§  252.  Same. — Continued. — The  case  of  Crane  vs.  Winsor 
et  al.^  was  a  case  in  which  the  water  used  by  the  prior  appro- 
priators  was  both  for  domestic  and  irrigating  purposes,   and 

1  27  Cal.  476.      2  Reported  in  2  Utah,  248. 


§252, 253j     XATURE  and  extent  of  uigiits.  40.') 

the  defendants— subsequent  appropriators — erected  upon  the 
banks  of  the  stream  above  the  settlement  of  plaintiffs  an  ore 
crusher,  and  the  water  which  passed  through  the  crusher 
held  in  solution  certain  chemical  poisons,  so  that  when  it 
reached  the  settlement  of  plaintiffs  it  was  so  impure  and 
poisonous  as  to  be  destructive  to  both  animal  and  vegetable 
life.  The  Supreme  Court  of  the  Territory,  in  reversing 
the  order  sustaining  demurrer  to  the  complaint  in  the  District 
Court,  said:  "The  plaintiffs  are  the  owners  or  tenants  in 
common  of  the  water  ditch  and  the  water  flowing  therein  by 
virtue  of  their  prior  appropriation,  and  the  corruption  of  the 
water  bj-  the  defendants  is  a  private  nuisance.  The  right 
thus  secured  to  the  plaintiffs  is  to  have  the  water  flow  to  them 
in  its  natural  state.  If  the  use  the  defendants  put  the  water 
to  did  not  deteriorate  it  in  quality  then  the  plaintiffs  would 
have  no  right  of  action  so  long  as  the  quality  was  not  mate- 
rially changed.  Suppose  the  defendants  had  diverted  all  or 
SLUy  considerable  portion  of  the  water  flowing  in  this  creek, 
there  could  be  no  doubt  about  the  right  of  the  plaintiffs  to  an 
injunction  restraining  the  defendants  from  such  diversion, 
upon  a  bill  framed  substantially  like  the  one  in  this  case. 
Taking  the  complaint  as  true  the  injury  to  the  plaintiffs  is 
more  serious  than  would  arise  from  the  mere  diversion  of  the 
water,  from  its  being  rendered  dangerous  to  human  life. 
The  rights  acquired  by  the  plaintiffs  should  l)e  protected  by 
the  Court." 

II.  Doctrine  of  AbjindoiuiuMit. 

§  253.  Doctrine  of  Abandonment  in  (Jeneral.  Express 
Abandonment. — The  prior  or  exclusive  right  to  the  use  of  the 
water  of  a  stream  or  lake  may  be  lost  by  abandonment.  The 
water  abandoned  becomes  publici  juris  and  the  subsetjuent 
appropriators  of  the  water  of  a  stream  are  entitled  to  it  accord- 
ing to  their  respective  priorities.^     There  are  several  methods 

IDavis    vs.     Gale,    32    Cal.     26,  3H9;    21    I'ac.   Rip.   12.     Tin-   \\..nl 

Docile  vs.  Manlen,  7  Or.  456;  Piatt  "abandon"  is  lield  in  this  conmc- 

Water  Co.  vs.  Northern  Colo.  Ir.  tion,  to  (icscrl  or  forsake.     Tlicrc 

Co.,  12  Colo.  525;  21  Tac.  Rep.  711.  can   be  no  abamlonincnt   withont 

McCaulley   vs.   ^McKca;^,    8  Monl.  some  action  of  tlu-  will  am!  ■<•!  i- 


406 


NATURE  AND  EXTENT  OF  RIGHTS. 


[§253 


by  which  an  abandonment  may  be  construed,  and  they  will  be 
taken  up  in  their  respective  order.  In  the  first  place  the  aban- 
donment may  be  express,  accomplished  by  the  intentional 
word  or  acts  of  the  appropriator.  The  very  fact  that  where 
water  was  appropriated  for  a  particular  purpose,  and  that  pur- 
pose has  been  fully  accomplished,  and  when  accomplished  the 
appropriators  dispersed  and  allowed  a  long  time  to  elapse 
without  using  the  ditch  or  water-rights  in  any  way  and  then 
sold  them  for  a  nominal  sum,  has  been  received  in  evidence  as 
tending  to  show  abandonment.^  Again,  while  the  construction 
of  works  for  the  diversion  of  water  to  be  taken  under  an  appro- 
priation remains  uncompleted  the  enterprise  ma}^  be  given  up 
before  any  water  has  been  actually  diverted  and  applied  to 
some  useful  purpose,  which  ipso  facto  may  also  be  taken  as  an 
express  abandonment  of  the  ditch  and  the  water-rights,  but 
of  course  dependent  to  a  certain  extent  on  the  words  and 
actions  of  those  giving  up  the  enterprise. 


tent  to  abandon.  Such  intent  may 
be  inferred  from  the  declaration 
and  acts  of  the  party  charged  with 
an  abandonment,  because  it  is 
only  by  the  declarations  and  acts 
of  persons  that  we  infer  their 
intention.  Dodge  vs.  Marden,  7 
Oreg.  457. 

1  Davis  vs.  Gale,  32  Cal.  27. 

In  the  recent  case  of  Stalling  vs. 
Ferrin,  7  Utah,  477;  27  Pac.  Rep. 
686,  the  defendant  claimed  an 
easement  in  a  ditch  crossing  the 
land  of  another,  but  declared  his 
intention  of  not  using  the  ditch, 
whereupon  the  owner  of  the  land 
filled  the  ditch  and  sowed  it  over 
with  grass,  with  knowledge  of  de- 
fendant, who  made  no  objection. 
It  was  held  by  the  Court  that  as 
against  the  plaintiff,  who  pur- 
chased the  land  several  years  after 
the  ditch  was  closed,  and  without 
notice  of  any  claim  thereto,  defen- 
dant must  be  held  to  have  aban- 
doned his  right  to  the  ditch. 


See  also  late  case  decided  by  the 
Supreme  Court  of  California,  of 
Kirman  vs.  Hunnewnll,  93  Cal. 
519;  29  Pac.  Rep.  124,  where  the 
Court  held  that:  After  a  ditch  by 
which  the  water  of  a  creek  was 
appropriated  for  mining  purposes 
has  fallen  into  disuse  and  has 
been  abandoned  the  water-right 
is  destroyed  by  the  abandonment; 
and  where,  after  such  abandon- 
ment, the  water  of  the  creek  has 
continuously  flowed  over  land  be- 
longing to  a  riparian  owner,  and 
has  been  used  by  him  for  irriga- 
tion and  for  domestic  and  general 
farming  purposes  for  many  years, 
no  person  claiming  under  the 
original  appropriators  can  revive 
the  old  ditch  and  water-right  so  as 
to  divert  the  water  beyond  the 
water-shed  of  the  creek  to  the 
injury  of  the  riparian  owner. 

See  also  Lowden  vs.  Frey,  67 
Cal.  474;  8  Pac.  Rep.  31. 


§  253]  NATURE  AND   EXTENT  OF  RIGHTS.  407 

Another  instance  of  express  abandonment  is  that  of  a 
mere  verbal  sale  and  transfer  by  the  prior  appropriator  of  his 
water-right.  This  in  itself  also  operates  as  an  abandonment. 
In  the  case  of  Smith  vs.  O'Hara  ^  the  Court  held  that  one  who 
enters  into  the  possession  of  a  ditch  used  for  appropriating 
water  under  a  verbal  sale  made  to  him  of  the  same  does  not 
succeed  to  the  rights  of  the  seller  so  as  to  claim  the  benefit  of 
the  seller's  prior  appropriation  of  the  water  flowing  in  the 
same,  but  must  date  his  appropriation  from  the  time  he  enters 
into  possession.  Upon  this  subject  the  Court  said:  "The 
plaintiff  adduced  no  written  evidence  of  the  transfer  of  the 
right  to  the  ditch,  through  which  were  conveyed  the  waters 
claimed  by  him,  from  those  who  had  constructed  it,  or  been 
in  possession  of  it,  but  he  proved  by  oral  testimony  that  it 
was  sold  to  him  b}'  Woods,  the  person,  or  one  of  the  persons, 
who  had  constructed  and  used  it.  This  evidence  was  properly 
stricken  out  by  the  Court."  ^  The  attempt  to  convey  a  water 
right  by  an  imperfect  conveyance,  while  it  may  not  operate  as 
an  absolute  transfer,  clearly  operates  as  an  abandonment  by 
the  grantor  of  his  rights  acquired  by  his  appropriation,  and 
the  right  of  the  purchaser  relates  only  to  the  date  of  his  tak- 
ing possession,  as  though  it  was  an  original  appropriation  made 
by  him.^  But  it  was  held  in  the  case  of  Quigsley  vs.  Birds- 
eye,^  that  a  grant  of  a  ditch  and  a  water-right  to  an  alien  is 
not  an  abandonment  by  the  owner,  but  the  alien  may  hold  the 
same  until  forfeited  by  office  found,  and  in  the  absence  of  any 
such  forfeiture  may  convey  title. 

A  grant  of  the  right  to  divert  the  waters  of  a  stream,  made 
by  a  pre-emptor  of  public  lands  bordering  thereon,  is  rendered 
worthless  by  the  latter's  abandonment  of  his  claim  before  i)ro- 

1  43  Cal.  373.  that  a  prior  ri^ht  to  the  waters  of 

2llill   vs.  Newman,  5   Cal.   445;  a  stream  can  be  acquired  only  hy 

Lower   K.    D.    Co.  vs.  Lower  K.,  showing   tliat    the    chiimant    has 

etc.,   Co.,   60   Cal.  408;  Dodge   vs.  acquired   the   rights   of  all   i)rior 

Harden,  7  Or.  456;  Clark  vs.  Wil-  appropriators  by  other  than  verbal 

lett,  35  Cal.  534.  sale,   otherwise  his  appropriation 

3Barkley  vs.  Tielekc,  2  Mont.  59.  does  not  antedate  his  own  posses- 

vSalina  Creek  Ir.  Co.   vs.   Salina  sion. 

Stock    Co.,    6    Utah,  456;    27   I'ac.  •»  11  .Mont.  439;  2S  I'ac.  Rep.  471. 
Rep.    57H;  where  the  Ccnirt  held: 


408 


NATURE  AND  EXTENT  OF  RIGHTS.      [§  253,  254 


curing  a  receiver's  title  to  the  land.^  And  a  part}'  who  has 
abandoned  his  prior  appropriation  cannot  by  sale  revive  his 
prior  rights  in  favor  of  his  grantees,  even  though  the  sale  is 
bona  fide  on  their  part.^ 

§  254.  Express  Abandonment  Continueil.— Iniplietl  Ahund- 
onment. — An  abandonment  may  also  be  made  of  apart  of  the 
waters  all  of  the  time.  As,  for  instance,  where  an  appropria- 
tor  is  entitled  to  a  certain  amount  of  water  for  a  certain  pur- 
pose and  can  claim  all  of  the  water  appropriated  for  that  pur- 
pose, but  onl}^  actually  diverts  and  applies  a  part  of  the  water 
and  permits  the  residue  that  he  might  use  to  flow  down  the 
stream.  If  his  actions  and  words  tend  to  prove  that  he  had 
no  intent  to  recapture  the  water  at  a  point  lower  down  it  will 
be  construed  by  the  Court  to  be  an  abandonment  of  the  amount 
thus  allowed  to  escape.  In  this  case  another  person  ma}'  ap- 
propriate a  part  or  the  whole  of  this  amount,  and  when  appro- 
priated by  him  his  right  thereto  wall  be  as  perfect  and  entitled 
to  the  same  protection  as  the  rights  of  the  first  appropriatorto 
the  portion  actually  diverted  and  applied  to  some  beneficial 
use  by  him.'' 


1  Conkling  vs.  Pac.  Imp.  Co.,  87 
Cal.  296;  25  Pac.  Rep.  399. 

See  also  Ortman  vs.  Dixon,  13 
Cal.  34,  where  it  was  held  that  the 
instrument  conveying  a  water 
right  must  be  in  writing,  but  need 
not  be  under  seal  if  accompanied 
by  possession. 

Smith  vs.  O'Hara,  43  Cal.  371; 
McKinney  vs.  Smith,  21  Cal.  381; 
N.  C.  &  S.  C.  Co.  vs.  Kidd,  37  Cal. 
313;  Thorp  vs.  Freed,  i  Mont.  685; 
I/obdell  vs.  Simpson,  2  Nev.  277; 
Barnes  vs.  Sabron,  10  Nev.  217. 

2  Davis  vs.  Gale,  32  Cal.  26;  Kir- 
man  vs.  Honnewill,  93  Cal.  519;  29 
Pac.  Rep.  124. 

In  the  recent  case  decided  by 
the  Supreme  Court  of  Colorado, 
Nichols  vs.  Mcintosh,  34  Pac.  Rep. 
278,  the  Court  held  that  a  person 


may  abandon  an  irrigating  ditch 
without  abandoning  his  water 
rights.  Such  rights  ma}-  be  aban- 
doned by  a  non-user,  but  so  long 
as  the  appropriator  continues  the 
use  of  such  rights  without  any  un- 
reasonable cessation  an  abandon- 
ment will  not  be  presumed  against 
him. 

3  Smith  vs.  O'Hara,  43  Cal.  371; 
where  it  was  held  that  if  the  first 
appropriator  of  water  takes  only 
a  part  of  the  water  flowing  in  the 
stream  another  may  afterwards 
appropriate  the  remainder;  and, 
if  the  first  appropriates  the  water 
only  during  certain  days  of  the 
week,  another  may  afterwards 
take  during  the  remaining  days 
of  the  week. 

McKinne}-  vs.  Smith,  21  Cal.  381. 


§254  NATURE  AND  EXTENT  OF  lacillTS,  401) 

There  may  be  an  abandonment  of  a/^/r/or  <7//of  the  water 
part  of  the  time,  by  the  prior  appropriator.  As  where  the 
first  appropriated  the  water  for  the  purpose  of  irrigation  and 
onh^  uses  part  or  all  of  the  water  durinj;-  the  cropping  season, 
and  permits  the  water  to  run  down  its  natural  channel  during 
the  rest  of  the  year.  Another  may  appropriate  the  water  for 
the  period  that  it  is  permitted  to  run  down  the  natural  channel 
and  acquire  a  good  title  to  it  by  the  appropriation  and  use  of 
the  same  for  the  period  of  time  that  the  first  was  not  ac- 
customed to  use  it.^  So,  also,  there  may  be  an  abandonment 
of  the  water  for  certain  days  of  the  week  or  certain  hours  of 
the  day;  but  during  the  season,  days  or  hours,  that  he  does 
use  it  his  priority  and  right  remain  good  as  against  all  sul>se- 
quent  appropriators;  and  the  mere  fact  that  his  use  is  not  con- 
tinuous does  not  of  itself  work  an  abandonment. ^ 

Where  water  is  discharged  into  the  stream  for  the  purpose 
of  drainage  or  as  a  mere  matter  of  convenience,  and  without  in- 
tention to  reserve  or  recapture  it,  it  works  an  abandonment;-* 
and  the  water  thus  discharged  becomes  a  part  of  the  natural 
channel  and  is  subject  to  the  same  rights  as  the  water  natur- 
ally flowing  therein.^  As  a  general  rule  the  authorities 
hold  that  in  all  cases  where  water  formerly  appropriated,  or 
which  has  been  under  the  control  of  any  person,  is  permitted 
to  flow  down  the  natural  channel  of  a  stream  below  the  point 

1  See  subject  Periodical  appro-  64Cal.46i;  Sclmltz  vs.  Swclmk-v, 
priatioiis,   Chapter    VII.  Sections       19  Nev.  357. 

177-178;    Hesperia   Land   Co.    vs.  •!  Maeris  vs.  Bicknell,  7  Cal.  i'li: 

Rogers,  83  Cal.  10.  McKinney  vs.  Smith,  21  Cal.  374; 

2  For  continuity  of  use  see  Thomas  vs.  Guiraud,  6  Colo.  530. 
Hesperia  Land  &  W.  Co.  vs.  Rog-  But  it  is  not  an  abandonment  to 
ers,  83  Cal.  11,  where  the  Court  mingle  the  waters  from  the  dilch 
held  that  the  claimant  of  an  irri-  with  a  natural  stream,  sothattliey 
gating  ditch  constructed  by  him  may  be  taken  out  at  a  point  lower 
over  the  land  of  another  may  down  the  stream.  IhUte  Canal 
prove  a  prescriptive  right  thereto,  Co.  vs.  Vaughn,  11  Cal.  143 

by  showing  the  use  of  water  there-  But    one    who    has    ilischarged 

in    for    irrigation    when    needed  water  from  a  foreign  source  into  a 

during   the   cropping  season,    for  natural    stream    cmnot   lake   out 

the  period  of  five  jears.  more  than  he  put  in.     Wilcox   vs. 

•^  Butte    Canal    Co.  vs.    Vaughn,  Hansch,  64  Cal.  461. 
II    Cal.    143;    Wilcox    vs.    Ilausch, 


410 


NATURE  AND  EXTENT  OF  RIGHTS. 


[§254 


of  diversion  of  the  appropriator,  without  any  intent  of  recap- 
turing it,  it  works  an  immediate  and  express  abandonment  of 
all  the  water  permitted  to  escape;  and  subsequent  parties  can 
not  be  deprived  of  their  rights  in  and  to  this  water  appro- 
priated by  them  by  an  attempt  on  the  part  of  the  first  appropri- 
ator to  shut  off  their  supply  by  enlarging  the  amount  diverted 
by  him  to  that  which  he  could  have  originally  claimed  had 
not  the  rights  of  subsequent  appropriators  vested.  When 
the  water  of  a  stream  leaves  the  possession  of  a  party,  with- 
out any  intent  to  recapture  it,  all  his  right  to  and  interest  in 
it  is  gone,  and  the  water  becomes  a  part  of  the  stream  and  is 
subject  to  appropriation  by  another. ^ 


J  Eddy  vs.  Simpson,  3  Cal.  249; 
Schultz  vs.  Sweeney,  19  Nev,  359; 
Woolman  vs.  Garringer,  i  Mout. 
59- 

The  prior  appropriator  can  not 
claim  water  after  it  has  been 
abandoned  by  him  and  appro- 
priated by  another.  Barkley  vs. 
Tieleke,  2  Mont.  59. 

See  also  Hewitt  vs.  Story,  51 
Fed.  Rep.  loi,  where  the  facts 
were  that  certain  persons  appro- 
priated by  means  of  the  B.  ditch 
the  water  remaining  in  the  stream 
after  two  prior  appropriations. 
The  supply  proving  insufficient 
after  several  years  they  each  pur- 
chased a  certain  number  of  shares 
in  the  T.  ditch  and  the  water  ap- 
propriated by  it,  and  diverted  the 
same  into  the  B.  ditch.  After  a 
time  other  shareholders  in  the  T. 
ditch  also,  by  permission,  diverted 
their  water  through  the  B.  ditch 
and  finally  the  T.  ditch  was 
abandoned  and  all  the  water  taken 
through  the  B.  ditch;  thereafter 
for  many  years  the  entire  amount 
of  water  taken  through  the  B. 
ditch  was  distributed  in  propor- 
tion to  the  ownership  of  shares  in 


the  T.  ditch  appropriation,  with- 
out regard  to  the  original  appro- 
priation by  means  of  the  B.  ditch. 
It  was  held  by  the  Circuit  Court 
of  the  United  States  that  this  con- 
stituted an  abandonment  by  the 
original  appropriators  and  their 
successors  of  a  claim  to  the  water 
originally  taken  by  the  B.  ditch. 

Green  vs.  Heiser,  16  Colo.  306; 
26  Pac.  Rep.  770;  Jatunn  vs. 
O'Brien,  89  Cal.  57;  26  Pac.  Rep. 
635;  Stalling  vs.  Ferrin,  7  Utah 
477;  27  Pac.  Rep.  686, 

In  a  recent  case  decided  by  the 
Supreme  Court  of  Oregon,  of  Cole 
vs.  Logan,  33  Pac.  Rep.  568,  it 
appeared  from  the  facts  that  in 
1872  the  defendant  surveyed  a 
ditch  from  his  homestead  to  a 
point  on  the  creek  above  his  other 
ditch,  and  was  compelled  on  ac- 
count of  quick  sand  to  abandon 
it.  In  1873  he  surveyed  another 
ditch  to  a  point  1%  miles  further 
up  the  creek,  which  he  conipleted 
in  1883.  From  1S72  to  1893  it  also 
appeared  that  another  ditch  com- 
pany diverted  1,000  inches  of 
water  from  a  certain  river  into 
such  creek.     The  court  held  that 


§255]  NATURE  AND  KXTENT  OF  UHHITS.  Ill 

§tJ55.  Implieil  AbandoniiuMit  CouliniUMl.— Where  water 
has  been  once  appropriated  and  has  been  under  the  control 
of  a  person  and  by  him  caused  to  be  discharged  into  a  natural 
stream  the  absence  of  any  intent  to  recapture  the  water  will 
be  presumed  unless  the  prior  appropriator  caused  the  water 
to  be  discharged  into  the  stream  for  the  express  purpose  of 
using  the  natural  channel  as  a  part  of  his  ditch  or  canal.'  If 
the  appropriation  has  never  been  completed  and  the  right  in 
and  to  the  water  has  never  vested,  or  the  works  for  diverting 
the  water  have  not  been  constructed  with  due  and  reasonable 
diligence  to  their  completion;  or  in  other  words,  if  there  has 
been  unreasonable  delay  in  their  construction,  and  in  the 
meantime  other  parties  have  appropriated  the  water  intended 
to  be  appropriated  by  the  first,  the  Courts  hold  that  the  prior 
party  has  abandoned  his  rights  in  and  to  the  water  as  against 
those  who  in  the  course  of  the  delay  have  legally  appropriated 
the  same.  Under  these  circumstances  the  Courts  hold  that 
the  rights  of  the  first  do  not  relate  back  to  the  time  when  the 
first  step  was  taken  to  secure  his  right,  as  it  would  have  done 
had  he  diligently  prosecuted  his  works  for  diversion  until 
completed,  but  only  to  the  time  when  the  diversion  of  the 
water  actually  begun. ^ 

the  defendant  had  not  abandoned  Atchison    vs.    Peterson,     i    Moiil. 

his  original  right  of  appropriation,  561. 

in  the  absence  of  the  right  of  such  The  first  appropriator  of  water 

irrigating  company  to  take  more  for  the  purpose  of  working  mines 

than  the  surplus    water   diverted  will    not    be    held    to    have  aban- 

from  such  river  into  the  creek.  doned  his  rights  by  failure  to  use 

IWoolman      vs.     Garringer,      i  it  during  certain  years  in  some  of 

Mont.  535;  Davis  vs.  Gale,  32  Cal.  which    there    was  not  enough  to 

26;  Butte  Canal  Co.  vs.  Vaughn,  11  work  the  mine,  where  he  «lid  use 

Cal.  143.  it  hi  a  subsequent  year.  McCauley 

i^Kimball  vs.    Gearhart,   12  Cal.  vs.  McKeig,  S  Mont.  3S9;   21  I'ac. 

27;  Elliot  vs.  Whitmore  (Utah),  24  Rep.  22. 

Pac.  Rep.  673;  Ophir  vS.  M.  Co.  vs.  It    is    not    abandonment     of    a 

Carpenter,  4  Nev.    534;    Irwin  vs.  former  claim  for  nu  nppropriutor 

Strait,    18   Nev.   436;    Keency   vs.  who,  while  prosecuting  his  work 

Carillo,  2  N.  M.  480;   Meggerle  vs.  willi    diligence     under     Uic    first 

Ashe,  33  Cal.  74;  see  Ante  Chapter  notice,  posts  a  second  notice.     Os- 

VI.,    Sections    168,     184;    but   see  good  vs.  I-;i  Dora.lo  Water  Co..  56 

Cal.  571,  57')- 


412  NATURE  AND  EXTENT  OF  RIGHTS.  [§  255 

After  the  works  for  diverting  the  water  are  entirelj^  com- 
pleted, and  the  prior  appropriator  fails  after  a  reasonable  time 
to  appl}'  all  or  a  part  of  the  water  to  some  beneficial  use  or 
purpose,  it  works  an  abandonment  of  the  amount  not  used, 
and  others  can  come  in  and  claim  all  the  water  that  is  not 
actually  needed  or  used  by  the  first  appropriator.  This  is 
undoubtedly  one  of  the  most  frequent  causes  of  abandonment 
in  these  later  days,  but  the  very  foundation  of  the  arid  region 
theory  of  appropriation  of  water  is  based  first  upon  priority, 
and  second  upon  an  application  of  all  of  the  waters  to  some 
beneficial  use  or  purpose.  There  must  be  no  water  wasted. 
In  these  days  when  water  is  becoming  more  and  more  scarce 
the  Courts  in  all  the  States  and  Territories  formed  out  of  the 
arid  region  are  each  year  more  stringently  enforcing  the  rule 
that  a  person  cannot  appropriate  or  lay  claim  to  more  water 
than  he  reasonably  needs  for  the  purpose  to  which  he  applies 
it.  And  where  a  person  has  appropriated  a  certain  amount  of 
water  and  fails  within  a  reasonable  time  to  apply  all  of  it  to 
some  beneficial  use  or  purpose,  the  Courts  hold  that  he  has 
worked  an  abandonment  as  to  the  water  not  used  or  wasted, 
when  it  is  claimed  by  others. ^ 


1  An   irrigating  canal    company  from  sucli  stream  had  lapsed  and 

filed  the   statement  and   plat   re-  reverted  to   the  vState.     Colorado 

quired   by   law   by   which   it    de-  Land    &    Water    Co.    vs.    Rocky 

clared   its  intention  to   construct  Ford     Canal,     Reservoir,     Land, 

a  canal  70  miles  long  for  irrigat-  Loan  &  Trust  Co.  (Colo.  App.),  34 

ing    purposes,    taking  the  water  Pac.  Rep.  580. 

from  a  certain  river  at  a  specified  See  also  Hindman  vs.  Rizor,  2 1 
point.  In  the  first  six  months  Oreg.  112;  27  Pac.  Rep.  13:  Kir- 
thereafter  it  spent  a  small  sum  in  man  vs.  Hunnewill,  93  Cal.  519;  29 
construction,  at  the  end  of  which  Pac.  Rep.  124;  Osgood  vs.  El  Do- 
time  it  made  an  executory  con-  rado  Water  Co.,  56  Cal.  571;  Davis 
tract  of  sale,  but,  the  purchaser  vs.  Gale,  32  Cal.  26. 
failing  to  perform,  the  sale  was  In  the  case  of  the  Last  Chance 
never  consummated.  During  the  M.  Co.  vs.  Bunker  Hill  S.  M.  &  C. 
two  years  following  the  date  of  Co.  (Idaho),  49  Fed.  Rep.  430,  the 
such  contract  such  company  made  Court  held  that  an  appropriator 
several  attempts  to  sell,  but  did  of  water  to  be  used  at  a  specified 
nothing  toward  construction.  It  place  for  operating  machinery  or 
was  held  that  the  incipient  right  other  works,  who  after  use  has 
of  such  company    to   take   water  returned   it   to  the  channel   at   a 


§2561 


NATURE  AND  EXTENT  OE  RI(;in> 


11:} 


§  25(>.  Abamlouiuent  by  Advorse  Possi'ssicm.  —  Ki^his  ot  a 
prior  appropriator  may  be  lost  by  his  acquiescence  in  an  ad- 
verse use  thereof  by  another,  continued  uninterruptedly  for 
the  statutory  period.  This,  however,  will  not  apply  to  any 
portion  of  said  water  which  the  prior  appropriator  did  within 
said  period  resume  and  afterwards  retain  possession  of.*  When 
such  other  person  has  had  the  continued,  open,  notorious,  un- 
interrupted and  adverse  enjoyment  of  the  water  or  some  por- 
tion of  it  for  all  or  a  part  of  the  time  for  a  sufficient  period, 
the  law  will  presume  a  grant  of  the  right  so  held  and  enjoyed 
by  him.^ 


point  above  the  place  from  which 
a  subsequent  appropriator  diverts 
the  water  appropriated,  cannot, 
after  such  subsequent  appropria- 
tion, chan.tje  the  place  of  use  so  as 
to  return  the  water  to  the  stream 
below  the  subsequent  appropria- 
tor and  deprive  him  of  its  use. 

See  Ante  Sections  165,  166; 
Union  Water  Co.  vs.  Carey,  25 
Cal.  504;  Smith  vs.  Logan,  iSNev. 
149. 

The  case  of  Atchison  vs.  Peter- 
son, I  Mont.  561,  holds  that  a 
mere  suspension  of  work  in  con- 
struction of  a  ditch,  for  a  reason- 
able time  would  not  necessarily 
be  an  abandonment  of  the  appro- 
priator's  inchoate  right. 

1  Union  Water  Co.  vs.  Crary,  25 
Cal.  504;  85  Am.  Dec.  145;  Davis 
vs.  Gale,  32  Cal.  26;  Smith  vs. 
Logan,  18  Nev.  149;  Woolman  vs. 
Garringer,  i  Mont.  535;  Crandall 
vs.  Woods,  8  Cal.  136;  Los  Angeles 
vs.  Baldwin,  53  Cal.  469;  Grisby 
vs.  Clear  Lake  Co.,  40  Cal.  396; 
Cave  vs.  Crafts,  53  Cal.  135;  Al- 
hambra   vs.    Richardson,  72    Cal. 

598- 

2!  Ibid.  Ahaheim  Water  Co.  vs. 
vSemi-Tropic    Water   Co.,    64   Cal. 


185;  Alta  Land  ^  Water  Co.  vs. 
Hancock,  85  Cal.  219;  Last  Chance 
W.  D.  Co.  vs.  Ileilbron,  86  Cal.  i; 
Lake  Side  Ditch  Co.  vs.  Crane,  So 
Cal.  181;  Davis  vs.  Gale,  32  Cal.  26; 
Partridge  vs.  McKinney,  10  Cal. 
181;  Crandall  vs.  Woods,  S  Cal. 
136;  American  Co.  vs.  Bradford,  27 
Cal.  360;  Union  Water  Co.  vs. 
Crary,  25  Cal.  504;  Cambell  v«. 
West,  44  Cal.  646;  Kvans  vs.  Ross 
(Cal.),  8  Pac.  Rep.  88;  Oneto  vs. 
Re-stano,  78  Cal.  374;  lleintzcn  vs. 
Binniger,  78  Cal.  5;  Smith  vs.  Lo- 
gan, 18  Nev.  149;  Dick  vs.  Bird,  14 
Nev.  161;  Dodge  vs.  Madden,  7 
Ore.  456;  Huston  vs.  Bybce,  17 
Oregon,  140;  Cox  vs.  Clough,  70 
Cal.  345;  Thomas  vs.  England,  71 
Cal.  458;  Coonradt  vs.  IJill,  71, 
Cal.  587;  21  Pac.  Rep.  1099. 

I'retlerick  vs.  Dickey,  9I  Cal. 
358;  27  Pac.  Rep.  742,  wliere  the 
Court  held  that  in  an  artion  by 
mill-owners  to  enjoin  iiUcrfereiice 
l)y  the  defendant  with  a  water- 
ditch  across  his  land,  lea<ling  to 
their  mill,  in  which  the  right  of 
way  for  the  water-ditch  is  claimed 
to  have  been  perfected  by  adverse 
possession,  a  notice  of  location  of 
tlu-  watir-righl  oiitiiuiiUy  iliiiniiMl 


414  NATURE  AND  EXTENT  OF  RIGHTS.       [§256,257 

As  to  wliat  constitutes  an  abandonment  by  adverse  posses- 
sion or  prescription  the  Supreme  Court  of  California,  in  the 
very  recent  case  of  Alta  lyand,  etc.,  Co.  vs.  Hancock,^  said: 
"It  will  thus  be  seen  that  the  whole  question  is,  whether 
these  facts  gave  to  plaintiff's  grantor  a  prescriptive  right  to 
the  diversion  and  use  of  that  water.  The  right  became  fixed 
only  after  five  years  adverse  enjoyment.  And  to  have  been 
adverse  it  must  have  been  asserted  under  claim  of  title,  with 
the  knowledge  and  acquiescence  of  that  person  having  the 
prior  right,  and  must  have  been  uninterrupted.  In  order  to 
constitute  a  right  by  prescription  there  must  have  been  such 
an  invasion  of  the  rights  of  the  party  against  whom  it  is 
claimed  that  he  would  have  had  ground  of  action  against  the 
intruder.  To  be  adverse,  it  must  be  accompanied  b}^  all  the 
elements  required  to  make  out  an  adverse  possession;  the  pos- 
session must  be  by  actual  occupation,  open,  notorious,  and 
not  clandestine;  it  must  be  hostile  to  the  other's  title;  it  must 
be  held  under  claim  of  title,  exclusive  of  any  other  right,  as 
one's  own;  it  must  be  continuous  and  uninterrupted  for  the 
period  of  five  years." 

In  most  of  the  western  States  and  Territories  the  time  re- 
quired to  acquire  a  right  to  the  use  of  water  by  prescription 
or  adverse  possession  is  a  period  corresponding  to  the  time 
fixed  by  the  statute  of  limitation  as  a  bar  to  an  action  for  the 
recovery  of  land. ^ 

§  257.  Same.— When  Abandonment  is  Presumed. — A  fail- 
ure to  use  water  is  competent  evidence  of  an  abandonment  of 
the  right  thereto;  and  if  continued  for  an  unreasonable  period 
it  creates  a  presumption  of  intention  to  abandon.    But  the  pre- 


bv    the  grantor   of   the   plaintiffs  Balston    vs.    Benstead,     i    Camp, 

-who  constructed  the  ditch  is   ad-  463;      Ricard      vs.      Williams,     7 

missible    as   evidence  tending  to  Wheaton,  59;  Williams  vs.  Nelson, 

show  an   adverse   claim,  whether  23  Pick.   141;   Colvin  vs.    Burnett, 

the  location  was  or  was  not  made  17  Wend.  564;  Hammond  vs.  Zeh- 

in  accordance  with  the  provisions  mer,  23  Barb.  473. 

of  the  code.  1  85  Cal.  226. 

Bealey  vs.   .Shaw,    6   East.    20S;  2  See  Post  Sections  293-297. 


§257-259]      XATURE  and  extent  of  KIlfllTS.  415 

sumption  is  not  conclusive  and  may  be  overcome  by    other 
satisfactor}'  proofs.^ 

Thus,  in  an  action  where  the  defendant  has  pleaded  adverse 
possession  in  himself  it  is  error  to  instruct  a  jury  "that  if 
they  believe  that  the  plaintiff  was  the  first  to  appropriate  and 
use  the  waters  in  dispute,  and  that  his  appropriation  and  use 
thereof  was  prior  to  that  of  defendant  and  those  under  whom 
he  claimed  adversely  to  the  plaintiff,  and  that  his  possession 
was  continuous,  exclusive  and  notorious,  and  that  he  has  not 
parted  with  his  right  thereto,  or  forfeited  the  same,  they  will 
find  for  the  plaintiff"  for  the  reason  that  the  instruction  would 
authorize  the  jurj^  to  find  for  the  plaintiff,  without  consider- 
ing the  defense  of  adverse  possession.^ 

§  258.  Same. — Continued. — Upon  the  question  of  presump- 
tion of  abandonment,  the  Supreme  Court  of  Colorado,  in  the 
case  of  Sieber  vs.  Frink,"^  said:  "  A  failure  to  use  for  a  time 
is  competent  evidence  on  the  question  of  abandonment,  and, 
if  such  non-usage  continue  for  an  unreasonable  period  it  may 
fairly  create  a  presumption  of  intention  to  abandon;  but  this 
presumption  is  not  conclusive  and  may  be  overcome  by  other 
satisfactory  proofs."^ 

Also,  in  the  case  of  Ison  vs.  Nelson,  decided  by  the  Circuit 
Court  for  the  District  of  Oregon,"'  it  was  held,  that  the  filling 
up  of  a  ditch  by  a  land  slide,  and  its  non-use  for  over  nine 
years,  destroys  all  claim  of  the  owner  thereto,  under  a  statute 
of  that  State  providing  that  when  a  ditch  is  abandoned,  and 
thereafter  the  claimant  shall  cease  to  exercise  acts  of  owner- 
ship over  the  same  for  one  year,  he  shall  be  deemed  to  have 
lost  all  claim  thereto  . 

§  259.  Effect  of  an  Abandonment.— As  to  the  effect  of  aii 
abandonment  the  authorities  seem  to  be  uniform  upon  the 
proposition    that   the  prior  appropriator  thereby  loses  all  of 

iSee  vSieber  vs.  Frink,   7  Colo.  Kestano,  89  C.il.  by,  2h  Viic.  Ri-p. 

148;   2   Pac.    Rep.   901;    Dorr    vs.  788. 

Hammond,  7  Colo.  79;  i  Pac.  Rep.  :'7  Colo.  148;  2  Pac.  Rep.  901. 

5q,  1  .Sec  also  Cole  vs.   LoKaii  (Ore), 

2  Ledu  vs.  Jim  Yet  Wa,   67  Cal-  33  Pac.  Rep.  568. 
346;   7  Pac.   Rep.    731;    Oiieto    vs.  0471.^.(1.  Rep.  199. 


416  NATURE  AND  EXTENT  OF  RIGHTS.  [§  259 

his  exclusive  rights  to  divert  or  use  all  of  the  water  which  he 
had  acquired  or  might  have  acquired  bj^  virtue  of  his  appro- 
priation, and  which  he  had  permitted  to  be  discharged  into  a 
natural  stream  without  intent  to  recapture  it.^ 

In  Woolman  vs.  Ganinger^  the  Supreme  Court  of  Montana 
said:  "  The  plaintiffs  could  acquire  no  other  than  a  mere 
privilege  or  right  to  the  use  of  the  waste,  or  at  most  but  a 
secondary  and  subordinate  right  to  that  of  the  first  appropria- 
tor,  and  only  such  as  was  liable  to  be  determined  by  their  ac- 
tion at  any  time,  unless  the  water  had  been  turned  back  into 
the  original  channel  after  it  had  been  used  and  answered  the 
purpose  of  the  first  appropriator  without  any  intention  of  re- 
capture, and  thereby  became  p2iblici  juris  and  subject  to  ap- 
propriation b}'  anyone." 

One  cannot,  after  he  has  abandoned  all  or  a  certain  portion 
of  the  water  by  any  method  described,  reassert  his  original 
right  to  the  same  amount  of  water  as  against  a  subsequent 
claimant  who  in  the  meantime  has  taken  the  proper  and  legal 
steps  to  effect  an  appropriation  thereb}-.-^  Again,  if  several 
persons,  having  their  respective  priorities,  appropriate  water 
from  the  same  stream  by  means  of  ditches,  and  another  person 
turns  water  into  the  stream  from  his  ditch  starting  out  of  an- 
other stream,  without  the  intention  of  recapturing  it,  the 
water  thus  turned  in  becomes  publici  juris,  and  belongs  to  the 
appropriators  who  appropriated  the  water  of  the  first  stream 
in  the  order  of  their  respective  priorities — the  first  taking  the 
surplus  water  to  the  extent  of  his  original  appropriation,  the 
next  to  the  extent  of  his,  and  so  on  until  all  the  water  is  ap- 
propriated. Of  course  it  will  be  readilj^  seen  that  as  the 
first  appropriator  can  originally  claim  the  waters  naturally 
flowing  in  the  stream  to  the  full  extent  of  his  appropriation, 
even  if  it  takes  all  of  the  water — but  being  limited  to  the 
amount  of  his  original  appropriation — any  surplus  water  dis- 
charged into  the  stream  b);-  any  means  accrues  more  to  the 
benefit  of  the  subsequent  appropriators.^    Also  if  a  prior  ap- 

1  Davis  vs.  Gale,  32  Cal.  26;  Bark-  'A  See  authorities  cited  on  subject 

ley  vs.  Tieleke,  2  Mont.  59.  in  the  previous  section, 

a  I  Mont.  545.  -ilbid.     Eddy    vs.    Simpson,     3 

Cal.  26. 


§259,260]       .VATURE  AND  EXTENT  OF  RIGHTS.  417 

propriator  should  abandon  any  or  all  of  his  rights  in  and  to 
the  waters  of  a  stream  the  water  thus  permitted  to  escape  ac- 
crues to  the  benefit  of  those  who  have  already  legally  made 
subsequent     appropriations    of     it     in    preference     to     any 
other  person  attempting  to  claim  the  water  abandoned  by  the 
prior  appropriator.     One  cannot  abandon  water  in   favor  of 
another,  but  if  the  proper  steps  are  taken  he  may  sell  it  or  a 
part  of  it  to  another.^    And  one  who  has  abandoned  his  prior 
right  to  the  use  of  water  cannot  by  afterwards  making  a  sale 
of  the  same  revive  his  prior  right  in  favor  of  his  grantees,  even 
if  the  sale  is  made  in  good  faith,  if  the   rignus  of  subsequent 
appropriators  have  in  the  meantime  i  ntervened.^    If,  on  the 
other  hand,  there  has  been  no  subsequent  appropriation  of  the 
water  thus  abandoned  by  some  other  party    the  prior  appro- 
priator   may    regain  his  former   rights;    but    this    can    only 
be  done  by  commencing  and  completi  ng  anew  the  requisite 
steps  to  effect  his  appropriation  as   were  required  of  him  in 
the  first  instance.     He  is   in  exactly  the    same  situation  as 
though  he  had  hitherto  made  no  attempt   to  appropriate  the 
waters  at  all.^ 

III.  Doctrine  of  Estopix^l. 

§  260.  Estoppel  in  Puis  as  Appli  ed  to  ^Vattr  Kfulits.— 

In  an  early  California  case  it  was  held  that:  If  a  person 
claimed  and  had  a  prior  right  to  the  waters  of  a  stream  by  vir- 
tue of  an  appropriation  or  otherwi  se,  and  stood  by  and  saw 
others  appropriate  it  at  a  great  expenditure  of  money  and 
labor,  under  the  mistaken  idea  that  they  were  obtaining  the 
first  appropriation,  and  the  first  party  did  not  inform  ihcm  of 

1  Davis  vs.   Gale,  32  Cal.  26;  Ro-  vs.  O'Hara,  43  Cal.  371;  liarkley  vs. 

minger  vs.  Squires,   9   Colo.   327;  Tieleke,   2    Mont.    59;  I'ahiaii    vs. 

Barkley  vs.    Tieleke,  2  Mont.  59;  Collins,  3  Mont.  215;  South   Tonl 

McKinney  vs.  Smith,  21  Cal.  374;  Canal  Co.  vs.  Gordon,  6  Wall.  561; 

Smith    vs.    O'Hara,    43   Cal.  373;  Rt-ynolds  vs.  Ho.'nicr,  51  Cal.  205; 

Hill    vs.    Newman,     5     Cal.     445;  I.obdcll  vs.  Hall,  3  Ncv.  507. 

Lower  Kings  D.  Co.  vs.  Lower  K.  ^  Davis  vs.  Gale,  32  Cal.  27. 

B.  &  F.  C.  Co.,  60  Cal.  408;  Dodge  •' Tucker  vs.  Jones,  8  Mont.  225. 

vs.  Marden,  7  Oreg.  456.  19  Pac.  Rep.  57;  Davis  vs.  Gale,  32 

As  to  the  sale  of  water  see  Brad-  Cal.     26;    Harklcy    vs.    Tieleke,    2 

ley  vs.  Ilarkness,  26Cal.  69;  vSmitli  Mont.  59. 


418  NATURE  AND  EXTENT  OF  RIGHTS.  [§  260 

the  mistake,  then  in  that  case  he  and  all  grantees  claiming 
water  under  him  are  afterwards  estopped  from  setting  up  their 
prior  rights.^  It  has  also  been  held  that  where  one  has  a 
right  by  prior  appropriation  to  the  use  of  the  waters  of  a 
stream,  and  stands  by  and  allows  another  to  purchase  it  from 
a  third  party  wrongfully  claiming  to  have  the  right  to  said 
water,  without  asserting  or  making  known  his  claim,  he  is 
estopped  from  afterwards  asserting  that  claim. ^  But  from  the 
weight  of  later  authority  we  do  not  think  the  above  doctrine 
is  the  present  law  upon  the  subject  of  estoppel  as  applied  to 
water-rights.  The  mere  facts  that  a  ditch  was  constructed  at 
a  great  cost  and  was  maintained  and  used  with  the  knowledge 
of  the  prior  appropriator  of  the  waters  of  the  stream,  and  with- 
out any  objection  or  opposition  on  his  part,  are  not  in  them- 
selves sufficient  to  operate  as  an  estoppel  against  his  after- 
wards asserting  his  claim  to  the  water.  There  must  be  actual 
misrepresentation  or  some  degree  of  turpitude  in  the  conduct 
of  the  prior  appropriator  before  a  court  of  equity  will  estop 
him  from  the  assertion  of  his  title. ^ 

The  very  definition  of  the  term  estoppel  by  matters  in  pais 
does  not  admit  of  so  broad  a  construction  as  was  given  by  the 
Court  in  the  case  of  Parke  vs.  Kilham,  supra.  It  is  defined 
by  Bouvier  as  "such  as  arise  from  the  acts  and  declarations  of 
a  person  by  which  he  designedly  induces  another  to  alter  his 
position  injuriously  to  himself."  * 

Bispham,  in  his  work  on  Equity  upon  this  subject,  says: 
"Equitable  estoppel,  or  estoppel  by  conduct,  has  iis  founda- 
tion in  fraud  considered  in  its  most  general  sense;  because  a 
man  cannot  be  prevented  by  his  conduct  from  asserting  a 
previous  right,  unless  the  assertion  would  be  tantamount  to  a 
fraud  upon  a  person  who  had  subsequently  acquired  the 
right."  5 

It  is  also  said  by  Mr.  Biglow,  in  his  work  on  Estoppel,^  that 

1  Parke  vs.  Kilham,  8  Cal  78.  I.  Co.,  64  Cal.  57;  Lux  vs.  Haggin,. 

2Fabian  vs.  Collins,  3 Mont.  215.  69  Cal.  255. 

SBiddle  Boj^gs  vs.  Merced   Mg.  4  Kinney     vs.      Farnsworth,     17 

Co.,  14  Cal.  279;  Anaheim  W.  Co.  Conn.  355;  Frost  vs.  Saratoga  Nat 

vs.  Semi-Tropic  Water  Co.,  64  Cal.  I.  Co.,  5  Denio.  154. 

185;  Stockman  vs.  Riverside  L.  &  5  Bispham  on  Equity,  Sec.  282. 

*5  Section  487. 


§260] 


NATURE  AND  EXTENT  OF  RIOnTS. 


419 


the  following  elements  must  be  present  in  order  to  constitute 
an  estoppel  by  conduct.  "  i.  There  must  have  been  a  repre- 
sentation or  concealment  of  material  facts.  2.  The  repre- 
sentation must  have  been  mide  with  knowledge  of  the  facts. 
3.  The  party  to  whom  it  was  made  must  have  been  ignorant 
of  the  truth  of  the  matter.  4.  It  must  have  been  made  with 
the  intention  that  the  other  party  would  act  upon  it.  5.  The 
other  party  must  have  baen  induced  to  act  upon  it  "  ' 


ISee  also  on  general  subject 
Richards  vs.  Sears,  6  Ad.  &  El. 
4*^9;  McCracken  vs.  San  Francisco, 

16  Cal.  626;  Green  vs.    Pretlyman, 

17  Cal  402;  Kelly  vs.  Taylor,  23 
Cal.  15;  Maye  vs.  Yappeii,  23  Cal. 
308;  Carpenter  vs.  Thurston,  24 
Cal.  281;  Davis  vs.  Davis,  26  Cal. 
40;  Bowman  vs.  Cudworth,  31  Cal. 
153;  Brown  vs.  Evans,  18  Nev. 
141;  I  Pac.  Rep.  673;  Love  vs.  Sha- 
ritzer,  31  Cal.  493;  Maine  Boys  T. 
Co.  vs.  Boston  Tun.  Co.,  37  Cal. 
50;  Martin  vs.  Zellerbach,  3S  Cal. 
315;  Davenport  vs.  Turpin,  43  Cal. 
597;  Smith  vs.  Penny,  44  Cal.  165; 
Bissell  vs.  Henshaw,  i  Cow.  553; 
Wythe  vs.  Smith,  4  Saw.  25;  Flege 
vs.  Garvey,  47  Cal.  377. 

In  the  case  of  Dallon  vs.  Ren- 
taria,  15  Pac  Rep.  37,  the  Supreme 
Court  of  Arizona  held  that  one 
who  stands  passively  by  and  al- 
lows another  to  open  out  fields 
and  irrigate  them  with  water  for 
16  years  under  the  belief  that  he 
has  .1  vested  right  to  and  equal 
use  thereof  is  estopped  from  sub- 
sequently denying  this  right.  And 
in  the  opinion  of  this  case  Mr. 
Chief  Justice  Wright  said:  "If 
the  greater  part  of  ])lainliff's  lamls 
had  been  cultivated  for  tiie  list  16 
years  it  was  done  witli  or  without 
defendants'  consent.  If  without 
their  consent,  have  they   not  been 


guilty  of  laches,  unreasonable  de- 
lay and    inexcusable     neglect    in 
waiting  16  years   without   taking 
any  steps  to  restrain  the  wrongful 
acts    of    plaintiffs?       If     the    de- 
fendants   were    fairly    put    upon 
their  guard;    if  they   had   actual 
knowledge  that  plaintiffs  were  di- 
verting waters   that  belonged    to 
defendants  by  virtue  of  prior  ap- 
propriation; if  they  stood   by  for 
16  years  or   more    and    saw    the 
plaintiffs  build  their  houses,  open 
out   their  lands  and  put  them  in 
cultivation,    expend   their  money 
in     the    improvement    of     these 
homts.  pay  their  proportion  of  the 
expense,  and  bear   their   propor- 
tion in  the  labor  in  building  and 
in    repairing     the     acqitias,    and 
otherwise    do   and    ])erform    such 
acts  as  indicated  that  plaintiffs  be- 
lieved   that    plaintiffs    had  equal 
rights  with  defendants  to  the  wa- 
ters of  tlie  Santa  Cruz  River— do 
not  all  these  circumstances  serve 
to   imply  that  defendants  waived 
or  aljandoned  any  exclusive  prior 
right    to    said    waters?     At    least, 
was  there   not  such  unreasonable 
delay  as  that  tliey    are    now  pre- 
cluded   from   conipl. lining?     Will 
parlies  be  permitted  to  stand  !)y 
for  16  years  or  more  and  sec  new 
fiel  is  put  in  culliv  ilion,  irrig.ited, 
forsodlli,  with  w.ilcrlo  whi   h  thry 


420  NATURE  AND  EXTENT  OF  RIGHTS.  [§  261 

§  261.  Same. — Authorities  on  Subject. — The  case  of  Bid- 
die  Boggs  vs.  Merced  Mining  Co.^  is  a  case  almost  universally 
cited  as  authority  on  this  subject  of  estoppel  in  pais,  although 
the  case  itself  did  not  involve  the  question  as  to  the  rights  in 
water,  except  as  a  part  of  the  realty  itself.  And,  as  the  sub- 
ject is  exceedingly  important,  we  will  quote  at  length  from 
the  opinion  touching  upon  this  subject,  which  was  rendered 
by  Mr.  Justice  Field  in  his  very  able  manner.  The  Court 
said:  "We  pass  to  the  second  ground  of  defence,  that  of 
estoppel.  The  only  matters  alleged  in  the  answer  b}^  way  of 
estoppel  are  the  private  survey  of  Freemont  in  1849,  ^^^  ^^'^^ 
presentation  of  the  same  to  the  Board  of  I^and  Commissioners 
as  embracing  and  identifying  the  tract  he  claimed;  and  sub- 
sequent public  and  repeated  disclaimers  b}'  him  at  the  time 
when  defendant  took  possession  of  the  premises.  *  *  * 
Upon  these  declarations,  the  answer  avers,  the  defendant 
acted  and  was  induced  to  make  valuable  and  permanent  im- 
provements upon  the  premises  in  controversy  and  adjacent 
property  at  an  expenditure  of  eight  hundred  thousand  dollars; 
and  insists  that  the  plaintiff  is  thereb}'-  estopped  from  asserting 
any  title  under  Freemont.     *     *     * 

"  It  is  undoubtedly  true  that  a  party  will,  in  many  instances, 
be  concluded  by  his  declarations  or  conduct,  which  have  in- 
fluenced the  conduct  of  another  to  his  injury.  The  party  is 
said  in  such  cases  to  be  estopped  from  denying  the  truth  of 

have  an  exclusive  prior  right,  see  defendant's  consent  if  they  stood 

large  sums  expended  •in  erecting  passivel}' by." 

new  homes,  and  witness  new  and  Plaintiffs  are  estopped  to  deny 

important  interests  intervene  and  defendant's  water  rights  in  a  ditch 

then    be   heard   to  complain?     A  by    declaration    of   their  grantor 

fortiori    defendants    will  not   be  while     in     possession,     that    the 

heard  to  complain  if  these  things  grantor  of  the  defendant  had  the 

were  done  with  their  consent.  In-  right    to    a    certain    part  of    the 

deed,  our  opinion  is,  in  this  case,  water,  relying  on  which  declara- 

that  acquiescence,   non-action  on  tion   defendants   bought   and  en- 

the  part  of  the  defendants  for  so  tered     into    possession    prior     to 

long  a  time  gave  consent.     They  plaintiff's  purchase.   Campbersvs. 

could  not  consent 'till  rights  vested  Shivers   (Arizona),    25    Pac.    Rep. 

and   then  dissent.'     So   th.'.t  it  is  540. 

really  immaterial  whether  the  ir-  1  14  Cal.  279. 
rigation  was  done  with  orr,without 


§261,262]       NATURE  AND  EXTENT  OF  RKHITS.  421 

his  admissions.  But  to  the  application  of  this  principle  with 
respect  to  the  title  of  property  it  must  appear:  First,  that  the 
party  making  the  admission  by  his  declarations  or  conduct  was 
apprised  of  the  true  state  of  his  own  title;  snoud,  that  he 
made  the  admission  with  the  express  intention  to  deceive,  or 
with  such  careless  and  culpable  negligence  as  to  amount  to 
culpable  fraud;  third,  that  the  other  party  was  not  only  desti- 
tute of  all  knowledge  of  the  true  state  of  the  title,  but  of  the 
means  of  acquiring  such  knowledge;  and  fourth,  that  he 
relied  directly  upon  such  admission,  and  will  be  injured  by 
allowing  its  truth  to  be  disproved. 

"These  qualifications  in  the  application  of  the  doctrine 
will  be  found  fully  sustained  by  the  authorities.  There  must 
be  some  degree  of  turpitude  in  the  conduct  of  a  party  before  a 
court  of  equity  will  estop  him  from  the  assertion  of  his  title 
— the  effect  of  the  estoppel  being  to  forfeit  his  property  and 
transfer  it  to  another.  '  In  all  this  class  of  cases  *  says  Story, 
speaking  of  equitable  estoppels,  'the  doctrine  proceeds  upon 
the  ground  of  constructive  fraud  or  of  gross  negligence,  which 
in  eflfect  implies  fraud.  And  therefore  where  the  circumstances 
of  the  case  repel  any  such  inference,  although  there  may  be 
some  degree  of  negligence,  yet  Courts  of  equity  will  not  grant 
relief.  It  has  accordingly  been  laid  down  by  a  very  learned 
judge  that  the  cases  on  this  subject  go  to  this  result  only,  and 
there  must  be  positive  fraud  or  concealment  or  negligence  so 
gross  as  to  amount  to  constructive  fraud.'  "  ' 

§262.  Same. — Authorities  Coiitimieil. — The  rule  laid  down 
in  the  case  of  Boggs  vs.  The  Merced  M.  Co.,  supra,  has  also 
been  followed  by  the  same  Court  as  applying  directly  to  cases 
where  rights  to  water  were  in  controversy.  In  the  case  of 
Stockman  vs.  Riverside  Land  and  Irrigating  Co.,"  the  Court 
said:  "  The  learned  judge  who  tried  the  case  and  rendered 
the  decrea  was  of  th3  opinion  that  the  facts  found  in  respect 
to  the  ditch  constituted  an  estoppel  in  pais;  but  in  this  he  was 
in  error.  The  plaintiffs  are  many  in  numl)er,  and  the  fnid- 
ings  that  the  ditch    was  constructed,   maintained,  ;inil   used 

1  Citing  '  Story's  Iviuily,  Section  391.      ^  (..1  Ciil.  57. 


422         NATURE  AND  EXTENT  OF  RIGHTS.       [§  262 

'  with  the  active  assistance  of  divers  '  of  them,  is  obviously  too 
indefinite  to  apply  to  any  particular  one  or  more  of  the  plain- 
tiffs, and  it  does  not  purport  to  include  them  all.  It  must 
therefore  be  laid  out  of  consideration.  The  only  facts  there- 
fore left  on  which  the  defendant  must  rely  as  constituting  an 
estoppel  are:  that  the  canal  cost  about  fifteen  thousand  dol- 
lars, and  that  it  was  constructed,  maintained  and  used,  in- 
cluding a  strip  of  land  on  each  side  of  it,  for  the  purpose  of 
conducting  the  water  for  irrigation,  with  the  knowledge  of 
the  plaintiffs  and  their  grantors,  and  without  any  objection  or 
opposition  thereto  on  their  part. 

"We  have  been  cited  to  no  authority  and  know  of  none 
that  holds  that  the  bare  fact  that  the  ditch  was  constructed 
with  the  knowledge  of  the  plaintiffs  and  their  grantors,  and 
without  objection  on  their  part,  though  at  heavy  cost,  is  suflS- 
cient  to  operate  an  estoppel.  '  There  must  be  some  degree  of 
turpitude  in  the  conduct  of  a  party  before  a  court  of  equity 
will  estop  him  from  the  assertion  of  his  title — the  effect  of  the 
estoppel  being  to  forfeit  his  property  and  transfer  its  enjoy- 
ment to  another.'  (Biddle  Boggs  vs.  Merced  Mining  Co.,  14 
Cal.  368.) 

"  For  the  error  committed  in  the  particular  last  mentioned 
the  judgment  and  order  miist  be  reversed." 

Also  in  the  case  of  Anaheim  W.  Co.  vs.  Semi-Tropic  W. 
Co.^  the  same  Court  said:  "  Nor  does  it  appear  that  there  was 
any  fraud,  misrepresentation  or  concealment  of  any  kind 
practiced  upon  the  predecessors  of  the  plaintiffs  by  the  owners 
of  the  ranch  Santiago.  In  a  recent  case  we  had  occasion  to 
quote  with  approval  what  was  held  here  in  the  case  of  Biddle 
Boggs  vs.  Merced  Mining  Co.,  14  Cal.  368:  'There  must  be 
some  degree  of  turpitude  in  the  conduct  of  a  party  before  a 
court  of  equity  will  estop  him  from  the  assertion  of  his  title 
— the  effect  of  the  estoppel  being  to  forfeit  his  property  and 
transfer  its  enjoyment  to  another.'  " 

Also  in  the  case  of  Lux  vs.  Haggin  ^  the  same  Court  said: 
"  To  constitute  such  an  estoppel  it  must  also  be  shown  that 
the  person  sought  to  be  estopped  has  made  an  admission  or 

I64  Cal.  195.      269  Cal.  266. 


§262,263]       NATURE  AND  EXTENT  OF  RIGHTS.  423 

done  an  act  with  the  intention  of  influencing  the  conduct  of 
another,  or  that  he  had  reason  to  believe  would  influence 
his  conduct,  inconsistent  with  the  evidence  he  proposes  to 
give  or  the  title  he  proposes  to  set  up;  that  the  other  party 
has  acted  upon  or  been  influenced  by  such  act  or  declaration; 
that  the  party  so  influenced  will  be  prejudiced  by  allowing 
the  truth  of  the  admission  to  be  disproved."  * 

Where  the  owner  of  an  irrigation  ditch  constructed  on  pub- 
lic lands  induces  subsequent  settlers  to  take  up  lands  that  can 
only  be  irrigated  by  the  ditch,  and  to  lab::)r  upon  and  increase 
its  capacity  with  the  understanding  that  they  were  to  use  the 
water  and  the  ditch  as  other  settlers,  when  not  used  by  prior 
appropriators,  he  is  estopped  to  deny  their  right  to  use  it.^ 

§  263.  E>toi>pel  by  Deed.— Estoppel  by  deed  is  such  as 
arises  from  the  provisions  of  a  deed.  It  is  a  general  rule  that 
a  party  is  estopped  to  deny  anything  stated  therein  which  has 
operated  upon  the  other  party  as  the  inducement  to  accept 
and  act  under  the  deed.'^  In  the  case  of  Zimmles,  administra- 
tor, vs.  San  lyuis  Water  Co.,'*  it  was  held:  A  recital  in  a  deed 
to  the  effect  that  the  grantee  is  about  to  divert  the  waters  of 
a  certain  stream  (which  flowed  through  the  grantor's  land), 
and  to  appropriate  the  same,  followed  by  a  grant  of  the  right 
of  way  to  conduct  water  over  the  land  of  the  grantor,  does  not 
estop  said  grantor  from  denying  the  right  of  the  grantee  to 
divert  the  waters  of  said  stream.  The  recital  in  the  deed  was 
held  to  be  too  general  and  not  necessary  to  the  conveyance, 

1  One   who  acquires  a  right  to  a  showing  that   he  did  not   need  or 

use  of  a   part  of  the  water  of  a  use   that  amount.       Hrown    vs. 

ditch,  not  to  exceed  a  certain  defi-  Evans,  i8  Nev.  i.}i 

nite   amount,   upon  condition    of  2i^clii  Ir.  Co.  vs.  Moylc,  4  Ut.ih, 

paying  his  pro  rata  share  of  the  327;  9  I'ac.  Rep.  S67;  Canipln-Il  vs. 

needed  repairs,  has  the  option  of  Shivers,  i  Ari/..  161;  Curtis  vs.  I.c 

using  whatever  amount   he   may  Grange.  H.  W.  Co. (Oregon)  25  I'ac. 

desire  within  the  fixed  limit,  and  Rep.  378;  Modifying  23  Pac.  Rep. 

he  will  not  be  held  liable  bejond  80.S. 

the  portion  used;  if,  however,  he  =*  i     Washburn     Real     Property, 

gives  notice  that  he  will  require  a  464. 

certain  amount,  he  will  be  bouml  •»  57  Cal.  221. 
by  such  notice,  and  estopped  from 


.424  NATURE  AND  EXTENT  OF  RIGHTS.       [^  263,  264 

and  the  Court,  after  citing  the  case  of  Kepp  vs.  Wiggett,^ 
said:  "That  case  is  cited  as  an  illustration  of  the  strict  ad- 
herence of  the  Courts  to  the  rule  that  an  estoppel  must  be 
certain  to  every  intent. "^  However,  upon  this  subject  the 
Courts  held  that  all  particular  and  definite  recitals  are  con- 
clusive evidence  of  the  material  facts  stated  in  the  deed. 

IV.  Conveyance  of  Water  Rights  and  Sale  of  Water. 

§264.  The  Conveyance  of  Water  Rights.— The  exclusive 
right  to  divert  and  use  the  water  of  a  natural  stream  acquired 
by  a  prior  appropriation  of  the  same  is  the  subject  of  property 
and  may  be  sold  and  conveyed,  as  well  as  the  ditch,  canal  or 
other  structure  by  the  means  of  which  the  diversion  is  ef- 
fected. But  both  the  right  to  the  use  of  the  water  acquired  by 
the  prior  appropriation,*  and  the  canal  or  other  structure 
through  which  the  diversion  is  effected,^  must  be  conveyed 
by  a  written  instrument,  as  in  the  case  of  real  property,  al- 
though they  may  be  conveyed  separately  and  do  not  neces- 
sarily go  together.  A  mere  verbal  sale  is  nugatory,  and  as 
we  have  seen  work  an  aban,donment.^    The  grantee  must  con- 

1  lo  Com.  Bench  35.  A  co-owner  of  a  water  right   ac- 

'^  See  also  as  to  general  recitals  quired  by  appropriation  can  con- 
not  estopping  the  parties  from  vey  his  own  interest  in  and  to  the 
disputing  the  statements  made  in  same,  but  his  rights  extend  no 
them,  Farrar  vs.  Cooper,  34 Maine  further;  he  can  not  convey  so  as 
394;  Noble  vs.  Cope,  50  Pa.  St.  17;  to  injuriously  affect  his  co-tenants' 
Muhlenburg  vs.  Druckenmiller,  rights.  Henderson  vs.  Nichols, 
103  Pa.  St.  631;  Kepp  vs.  Wiggett,  67  Cal.  152;  7  Pac.  Rep.  412. 
10  C.  B.  35.  5  Hill   vs.   Newman,   5  Cal.  445; 

3  Calkins   vs.    Copley,    29  Minn.  Lower  King   etc.    Co.    vs.   Lower 

471;  Sutton  vs.  Casselleggi,  5  Mo.  King  B.  &  F.  C.  Co.,  60  Cal.  408; 

App.     hi;    School     District     vs.  Dodge  vs.  Marden,  7  Ore.  456.  The 

Stone,    106   U.    S.    183;    Lucas  vs.  ditch  is  not  a  mere  easement   or 

Beebe,  88  111.  427;  Green  vs.  Ap-  appurtenance,    it    is  land.     Reed 

peal,  97  Pa  St.  342.  vs.    Spicer,   27  Cal.   57;  Clark   vs. 

^Barkley   vs.    Tieleke,   2    Mont  Willett,  25  Cal.  534;  Hart  vs.  Plum, 

59;    Kidd   vs.   Laird,  15  Cal.    162;  14  Cal.   148;  Merritt  vs.  Judd,   14 

Smith    vs.    O'Hara,   43   Cal.    371;  Cal.  59;  Burnhara  vs.  Freeman,  11 

McDonald  vs.  Bear  River  etc.  Co.,  Colo.  601. 

13  Cal.  220;  Dalton  vs.  Bowker,    8  6  Smith  vs.  O'Hara,  43  Cal.  371; 

Nev.  190;  Union  W.  Co.  vs.  Crary,  Lobdell    vs.     Hall,    3    Nev.     507; 

25  Cal.  504.  Barkley  vs.   Tieleke,  2  Mont.  597; 


§264] 


NATURE  AND  EXTENT  OK  KI(J11T^ 


425 


nect  himself  in  interest  with  those  who  first  appr()j)ri:Uo(l  the 
waters  of  the  stream  and  used  the  same  for  some  l)L-ntticial 
purpose  in  such  a  manner  that  it  will  be  notice  to  the  public 
that  he  succeeds  to  the  right  named  in  the  conveyance.  This 
can  onl}^  be  done  by  deed  and  the  recording  of  the  same,  in 
which  case  the  right  of  the  grantee  will  relate  back  to  the  in- 
ception of  the  appropriator's  title. ^ 

However,  it  is  held  that  a  verbal  sale  of  a  right  to  divert 
water  from  a  natural  stream,  accompanied  by  possession,  is 
valid,  but  in  that  case  the  right  of  the  vendee  only  relates 
back  to  the  date  of  his  own  actual  possession,  as  if  he  had  on 
that  date  made  the  appropriation  himself.-  In  this  case  the 
prior  appropriation  of  the  vendor  is  virtually  abandoned,  and 
the  vendee  takes  his  rights  simply  as  a  subsequent  appropria- 
tor  in  his  regular  order  with  other  subsequent  appropriators, 
should  there  be  any.  The  vendee  can  not  by  a  verbal  con- 
tract or  an  unrecorded  deed,  even  accompanied  by  possession, 
tack  his  own  use  on  to  that  of  his  grantor  who  acquired  his 
right  by  appropriation,  and  thus  cut  out  the  rights  of  appro- 
prjators  who  were  subsequent  to  his  grantor,  but  prior  to 
himself.-^    From  the  above  we  find  that  the  general  rule  of  law 


Hill  vs.  Newman,  5  Cal.  445; 
Lower  K.  D.  Co.  vs.  Lower  K.  B. 
etc.  Co.,  60  Cal.  408;  Dodfje  vs. 
Marden,  7  Ore.  456;  Clark  vs. 
Willett,  35  Cal.  534;  Ante  Section 
253-255- 

1  Smith  vs.  O'Hara,  43  Cal.  371; 
Chiatovich  vs.  Davis,  17  Nev.   133. 

2 Ibid;  Davis  vs.  Gale,  32  Cal. 
26;  Bradley  vs.  Harkness,  26  Cal 
69;  Smith  vs.  O'Hara,  43  Cal.  371; 
Barkley  vs.  Tieleke,  2  Mont.  59; 
Fabian  vs.  Collins,  3  Mont.  215. 

3  See  Ante  Sections  253-255  and 
authorities  cited  above. 

Parties  who  have  abandoned 
their  right  to  the  use  of  water  can 
not,  by  afterwards  making  a  sale 
of  the  same,  revive  their  prior 
rights  in   favor  of  their  grantees. 


even  if  the  sale  should  be  made  in 
good  faith.  Davis  vs.  Gale,  32 
Cal.  26;  Dodge  vs.  Marden,  7  Ore. 
456- 

The  abandonment  of  property 
destroys  the  title  and  also  its  re- 
lations. 

Gluckauf  vs.  Reed,  22  Cal.  4(>>'i 
Dyson  v.s.  Bradshaw,  23  Cal.  536; 
Davis  vs.  Butler,  6  Cal.  510; 
French  vs.  Baintree  M.  Co..  23 
Pick.  216;  Mctioon  va.  Ankeiiy, 
II  111.  558;  ICniprey  vs.  Owen.  »> 
Ivxch.  369. 

The  owner  of  a  bed  of  a  stieiiin 
and  the  waters  therein  may  grant 
any  part  of  either  ap  irt  from  the 
other.  Doyle  vs.  San  Diego  K.  & 
T.  Co..  46  I'ed.  Kep.   7(J9. 


426  NATURE  AND  EXTENT  OF  RIGHTS.       [§  264,205 

in  the  arid  region,  that  the  right  to  use  and  divert  waters  ac- 
quired by  prior  appropriation,  and  the  right  to  canals,  ditches 
or  other  structures  by  the  means  of  which  the  water  is  di- 
verted, can  be  held,  granted,  abandoned,  or  lost  by  the  same 
means  as  a  right  of  the  same  character  issuing  out  of  lands  to 
which  a  private  title  exists.^ 

§  3(>5.  Slime —Authorities  Discussed.— In  the  case  of 
Strickler  vs.  City  of  Colorado  Springs,  decided  in  April, 
1891,^  the  Court  in  holding  that  a  priority  to  the  use  of  water 
for  irrigation  is  a  property  right,  and  that  the  same  may  be 
sold  and  transferred  separately  from  the  land  in  connection 
with  which  the  right  ripened,  said:  "An  examination  of  the 
case  in  12  Colo,  and  19  Pac.  Rep.  ,3  will  show  the  conclusions 
there  announced  to  be  well  supported  upon  principle  and 
authority;  and,  it  being  thereby  established  that  the  place  of 
use  may  be  changed,  it  logically  follows  that  the  right  to  the 
use  of  the  water  for  irri)j:ation  is  a  right  not  so  inseparably 
connected  with  the  land  that  it  may  not  be  separated  there- 
from. The  right  has  been  treated  and  held  as  a  property 
right  in  many  cases.  In  Kidd  vs.  Laird,  15  Cal.  162,  it  is 
said:  'The  court  has  never  departed  from  the  doctrine  that 
running  water,  so  long  as  it  continues  to  run  in  its  natural 
course,  is  not  and  can  not  be  made  the  subject  of  private 
ownership.  A  right  may  be  acquired  to  the  use  which  will 
be  regarded  and  protected  as  property,  but  it  has  been  dis- 

llbid.     Union     Water    Co.     vs.  bought   by   defendant,    and  were 

Crary,  25  Cal.   504;  Burnham   vs.  diverting  water    from   the   creek 

Freeman,    11    Colo.    601;    19   Pac.  flowing   through   it,    at   the   time 

Rep.  76t.     But   see   Hindman  vs.  they  bought,   they   are   not   inno- 

Rizor,  21  Ore.   112;  27  Pac.  Rep.  cent  purchasers  without  notice  of 

13,    where    the  Court    lield   that  the  plaintiff's  claims,  was  held  to 

where   one   holding  a  possessory  be  the  rule  in   Low  vs.  Schaffer, 

right  to  public  land,  appropriates  recently  decided  by  the  Supreme 

water  for  the  purpose  of  irrigating  Court  of  Oregon,  33  Pac.  Rep.  678; 

it,    such   water   right    becomes   a  see  late  case    of  Frank  vs.   Hicks 

part    of    the    improvements    and  (Wyo.)  35  Pac.  Rep.  475,   and   Mc- 

may  be  sold  verbally  and  trans-  Phail  vs.  Forney,  35  Pac.  Rep.  773. 

fered  with  the  possessory  right.  2  16  Colo.  61;  26  Pac.  Rep.  313. 

In  a  contest  over  water  rights,  3  Fuller  vs.  Mining  Co.,  12  Colo, 

where  it  appears    that   plaintiff's  12;  19  Pac.  Rep.  313. 
ditches  were  constructed  on  land 


§265]  NATURE  AND  EXTENT  OF  RIGHTS.  127 

tinctly  declared  in  such  cases  that  the  ri^Mit  carries  with  it  no 
specific  property  in  the  water  itself.'  Mr.  C.ould  in  his  work 
on  Water  Rights,  in  section  234,  says:  'The  rii;ht  to  water- 
acquired  by  priority  is  the  subject  of  property,  and  may  be 
sold  and  conveyed.'  'The  exclusive  right  to  divert  and  use 
the  water  of  a  stream  as  well  as  the  ditch  or  other  structure 
through  which  the  diversion  is  affected,  may  be  transferred 
and  conveyed  like  other  property,  or  rights  analagous  to 
property,'  Pom.  Rip.  Rights.  §  58. 

"  The  authorities  seem  to  concur  in  the  conclusion  that  the 
priority  to  the  use  of  water  is  a  property  right.  To  limit  its 
transfer,  as  contended  by  appellee,  would  in  many  instances 
destroy  much  of  its  value.  It  may  happen  that  the  soil  for 
which  the  original  appropriation  was  made  has  been  washed 
away  and  lost  to  the  owner  as  the  result  of  a  freshet  or  other- 
wise. To  say,  under  such  circumstances,  that  he  could  not 
sell  the  water-right  to  be  used  upon  other  land  would  be  to 
deprive  him  of  all  the  benefit  from  such  right.  We  grant 
that  the  water  itself  is  the  property  of  the  public;  its  use,  how- 
ever, is  the  subject  of  appropriation,  and  in  this  case  it  is  con- 
ceded that^the  owner  has  the  paramount  right  to  such  use. 
In  our  opinion  this  right  may  be  transferred  by  sale  so  long 
as  the  rights  of  others,  as  in  this  case,  are  not  injuriously  af- 
fected thereby.  If  the  priority  to  the  use  of  water  for  agricul- 
tural purposes  is  a  right  of  property  then  the  right  to  sell  it  is 
as  essential  and  sacred  as  the  right  to  possess  and  use.  Black- 
stone  says.  '  The  third  absolute  right  inherent  in  every 
Englishman  is  that  of  property,  which  consists  in  the  free 
use,  enjoyment  and  disposal  of  all  his  acquisitions,  without 
any  control  or  dimaiution  save  only  by  the  laws  of  the  land.' 
I  Bl.  Comm.  p.  138.  What  difference  can  it  make  to  others 
whether  the  owner  of  the  priority  in  this  case  uses  it  ui)on  his 
own  land  or  sells  it  to  others  to  be  used  upon  other  lands? 
There  is  no  claim  of  waste  occurring  between  the  present 
points  of  diversion  and  the  place  where  the  city  is  to  take 
the  water.  Where  a  material  waste  results  from  the  change, 
a  new  feature  is  introduced  which  need  not  be  consi«lered 
here."     *     *     * 

"  There  is  no  controversy   in  the  present  case  in  reference 


428  NATURE  AND  EXTENT  OF  RIGHTS.       [§  265,  266 

to  the  mode  and  manner  in  which  the  right  of  the  water  may 
be  conveyed,  the  contention  extending  further  back;  the 
claim  being  that  the  right  cannot  be  conveyed  at  all,  except 
with  the  land.  The  claim  is  not  well  founded.  As  we  have 
seen,  the  right  is  the  subject  of  property  and  may  be  trans- 
ferred accordingly;  the  sole  limitation  being  that  the  rights  of 
others  shall  not  be  injuriously  affected  by  such  transfer." 

Water  rights  thus  conveyed  are  distinct  and  substantive 
subjects  of  grants,  and,  although  in  their  nature  appertaining 
to  land  they  may  exist  without  any  restriction  as  to  their  use 
in  connection  with  the  land  granted,  or  any  other  designated 
parcel,  and  stand  preciselj'^  as  ifgranted  by  deeds  containing  no 
conveyance  of  land  whatever.^ 

The  transfer  of  a  right  to  divert  water  does  not  pass  a  right 
of  action  for  damages  for  a  previous  illegal  use  of  the  water. - 
If  a  ditch,  canal  or  other  structure  for  diverting  the  water,  be 
mortgaged  before  the  same  shall  have  been  completed  the 
mortgage  wall,  if  such  appears  to  be  the  intent,  include  the 
whole  work  when  completed  and  all  improvements  afterwards 
put  thereon  like  a  mortgage  of  real  estate.-^ 

§  266.  Sale  of  Wjiter  After  Diversion. — The  exclusive 
right  to  divert  and  use  the  water  of  a  natural  stream  acquired 
by  appropriation  is  the  subject  of  property,  and  may  be  sold 
and  transferred  by  the  original  appropriator  to  other  persons. 
This  right  must  be  distinguished  from  the  right  of  the  appro- 
priator to  sell  the  water  diverted  from  the  natural  stream  by 
him  into  his  canal,  ditch  or  reser^'oir,  as  the  case  may  be. 
Mr.  Chief  Justice  Field,  in  an  early  California  case,  said:"* 
' '  Water,  when  collected  in  reservoirs  or  pipes  and  thus  sep- 
arated from  the  original  source  of  supply,  is  personal  property, 

llbid.     See     authorities      cited  --^Uuiou    W.    Co.    vs.  Murphy's 

above  and   also   Fuller  vs.    Swan  Flat   Fluming   Co.,    22    Cal.    620; 

River   Co.,    12  Colo.    12;    19   Pac.  Ferguson   vs.  Miller,  6   Cal.    402; 

Rep.  836;   DeWitt  vs.    Harvey,   4  Souie    vs.    Davies,     7     Cal.     575; 

Gray,  486;  Kidd  vs.  Laird,  15  Cal.  Sands    vs.    Pfeiffer,    10   Cal.    258; 

162;   Pratt   vs.    Lamson,    2    Allen  Frank   vs.   Hicks  (Wyo.),  35  Pac. 

275;  Schuylkill  Nav.  Co.  vs.  Moore,  Rep,  475. 

2  Whart.  477.  ^Heinenian    vs.     Blake,    19  Cal. 

2Kimball  vs.Ciarheart,  12  Cal.  27.  529. 


§266,  2C7J  .    NATURE  AND  EXTENT  Ob'  KUJUTS.  Jl^) 

and  is  as  much  the  subject  of  sale— an  article  of  coniiuerce— 
as  ordinary  goods  and  merchandise.  Engaging  in  the  busi- 
ness of  furnishing  it  to  the  inhabitants  of  a  city  for  equivalent 
considerations  to  be  received  is  engaging  in  '  a  species  of 
trade  or  commerce.'  *  *  *  Ice  companies  organized  to 
furnish  the  inhabitants  of  a  city  with  ice,  and  gas  companies 
organized  to  furnish  them  with  gas,  and  the  company  in  ques- 
tion organized  to  supply  them  with  water,  all  stand  upon  the 
same  footing." 

The  later  authorities  upon  the  subject  hold  that  not 
only  may  a  person  or  a  company  sell  the  water  itself,  but 
also  that  should  the  owner  of  a  canal  or  other  works  con- 
structed to  furnish  water  for  irrigation  r^^-fuse  to  supply  a  bona 
fide  customer  who  applies  for  a  certain  amount  of  water 
needed  by  him  and  tenders  the  proper  charges  therefor,  then 
an  action  for  mandamus  will  lie  to  compel  the  ditch  owner  to 
deliver  the  water  necessary.^ 

As  will  be  seen  in  a  subsequent  portion  of  this  volume  in 
cases  similar  to  the  above,  some  of  the  States  and  Territories 
regulate  the  price  charged  for  water  by  canal  companies,  and 
also  prescribe  penalties  in  places  where  the  company  has  plenty 
of  water  but  refuses  to  deliver  the  same  to  would-be  purchasers 
who  tender  the  legal  price  therefor. - 

§  2()7.  Water  Iii£?ht  When  an  Appurtenaiue  lo  Laiul. 

An  appurtenant  is  a  thing  belonging  to  another  thing,  but 
which  has  not  belonged  to  itimmemorially.-^    It  becomes  ne- 

iMcCreary  vs.   Beaudry,  67  Cal.  Farmer  vs.   Ukiah  W.   Co.,  5O  Cal. 

120;  7  Pac.  Rep.  264;  \Vhee]er  vs.  ";  New  Ispwich  W.  L.  Factory  vs. 

Northern  Colo.  Ir.  Co.,    10   Colo.  Batchelder,  3  N.  II.  190. 

582;  17  Pac.  Rep.  487;   Combs  vs.  "An  appurtenance  is  that  wliich 

Agricultural   Ditch  Co.,    17  Colo.  belongs    to     another    tiling,    but 

146;  28  Pac.  Rep.  966;  vSouth  Boul-  which  has  not  belonged  to  it  ini- 

der   D.    Co.  vs.  Marfell,    15    Colo.  meniorially.  Appurtenant  denotes 

302;  25   Pac.    Rep.   504;   see    Po.st  annexed  or  belonging  to,   t>ul  in 

Chapter  XI.,  Section  335-  ^''*^    *^    denotes     an     annexation 

2  Post  Part  Two.  which  is  of  convenience   merely 

3  I    Ventris,  407;  Coke   on   I<ilt.  aiid  not  of  necessity,  and   which 
121    I),    and     121    a.;    Moore,  682;  may   have    had    its   ori^^in    at  any 


430 


NATURE  AND  EXTENT  OF  RIGHT? 


[§267 


cessary  at  this  point  to  know  when  a  water  right,  ditch  cr  other 
structure  used  for  diverting  and  conducting  the  water  becomes 
an  appurtenant  to  the  land  upon  which  the  water  was  formerly 
used  and  upon  or  through  which  the  ditch  ran. 

It  depends  entirely  upon  the  circumstances  of  the  case  as  to 
whether  a  water  right  or  ditch  is  appurtenant  either  to  a 
tract  of  land,  a  mine  or  to  any  other  portion  of  real  property. 
However,  in  general,  we  will  say  that  a  right  which  secures 
to  the  owner  of  a  tract  of  land  water  for  irrigating  or  other 
purposes  necessary  to  the  beneficial  enjoyment  of  the  land 
becomes  appurtenant  to  said  land  and  passes  by  conveyance 
thereof  unless  specially  reserved  in  the  deed.  Tliis  is  upon 
the  principle  that  when  a  party  grants  a  thing  he  by  implica- 
tion grants  whatever  is  incident  to  it  and  necessary  to  its 
beneficial  enjoyment.^ 


time,  in  both  of  wliicb  respects  it 
is  distinguished  .from  appendant. 
Abb.  Law  Diet.,  title  Appurte- 
nance. 

See  also  late  case  of  Crooner  vs. 
Benton,  93  Cal.  365;  28  Pac.  Rep. 
958,  where  the  Court  held  that 
under  Section  662  of  the  Civil 
Code  defining  an  appurtenance 
and  providing  that  a  "  thing  is 
deemed  to  be  incidental  or  appur- 
tenant to  land  when  it  is  by  right 
used  with  the  land,  etc.,"  the 
phrase  "by  right  used  with  the 
land"  does  not  refer  to  the  own- 
er's title  to  the  incident,  but  has 
reference  to  the  rightful  iise  by 
which  the  incident  has  become  an 
adjunct  to  th  1  land,  and  remains 
such  so  long  as  it  can  be  used 
therewith  without  lawful  interfer- 
ence by  third  persons. 

1  Cave  vs.  Crafts,  53  Cal.  135;  Mc- 
Donald vs.  Bear  R.  Co.,  13  Cal.  220; 
15  Cal.  145- 

See  Farmer  vs.  Ukiali  W.  Co  ,  56 
Cal.  II,  where  the  Court  he  d  that 
L  being  the  owner  of  a  lot  of  la-d 


and  a  dwelling  house  and  other 
buildings  thereon,  purchased  of 
the  defendant  a  water  right  and 
bought  the  water  upon  the 
premises  and  used  it  for  domestic 
purposes  and  irrigating  the  lar.d; 
and  afterward  conve3-ed  the 
premises  with  appurtenances 
thereto  loB,  from  whom,  through 
mesne  conveyances,  the  plaintiff 
deraigned  title.  After  the  deed  to 
B,  Iv  conveyed  the  water  right  to 
T,  who  convej'ed  to  defendant. 
Held,  that  under  the  deed  to  B 
the  water  right  passed  as  appurte- 
nuit  to  the  land;  and  held  further, 
that  in  view  of  the  fact  that  B's 
deed  was  recorded  a  finding  that 
the  defendant  took  in  good  faith 
and  without  notice  of  the  plaint- 
iff's cl-iim  could  not  be  sustained. 

Standart  vs.  Round  V.  W.  Co., 
77  Cal.  399;  Smith  vs.  Cooley,  65 
Cal.  47;  Bissell  vs.  Grant,  35  Conn. 
288;  Angell  on  Water  Courses, 
Section  153  a.;  Philbrick  vs. 
Ewing,  97  Mass.  133. 

In   Tucker  vs.  Jones,  8   Mont. 


§237]  NATUUE  AND  EXTENT  OF  lliailTS.  \M 

In  the  case  of  Cave  vs.  Crafts^  tlie  facts  wore  that  the 
grantors  of  the  plaintiffs  had  appropriated  the  water  of  a 
stream  and  conducted  tlie  same  to  a  cert.iin  portion  of  their 
ranch  known  as  "  Cottonwood  Row,"  and  there  cmpl-iyed  the 
stream  for  the  purposes  of  irrigation;  that  this  appropriation 
of  the  water  and  its  use  upon  this  particular  tract  of  land  was 
continued  by  the  plaintiffs  after  that  portion  of  the  ranch  was 
sold  to  them  until  another  portion  of  the  ranch  was  purchased 
from  plaintiffs'  grantors  by  the  defendants,  wlio  interfered 
with  plaintiffs'  water  rights  as  above  stated.  And  the  ques- 
tion arose:  Did  not  the  exclusive  use  of  the  waters  attach  as 
appurtenant  to  the  lands  at  Cottonwood  Row  in  such  sense 
that  neither  the  Lugos  nor  their  grantees  of  lands  on  the  zaiija 
above  could  divert  the  waters  or  deprive  the  owners  of  Cot- 
tonwood Row  of  their  accustomed  use?  And  the  Court  hcdd 
that  there  was  no  doubt  but  tliat  while  the  title  of  the  whole 
ranch  remained  in  the  grantors  the}'^  could  divert  the  water 
from  the  stream  anywhere  within  the  boundaries  of  the  rancli. 
The  Court  also  held  that  the  plaintiffs  acquired  their  lands 
with  the  use  of  the  water  by  means  of  the  zanja  attached 
and  quasi  appurtenant  to  them,  and  that  no  subseqnent  act  of 
the  grantors  could  divest  them  of  their  right.  And  upon  this 
principle  the  Court  said:  "  When  the  owner  of  lands  divides 
his  property  into  two  parts,  granting  away  one  of  them,  he  is 
taken  by  implication  to  include  in  his  grant  all  such  ease- 
ments in  the  remaining  part  as  are  necessary  for  the  reason- 
able enjoyment  of  the  part  which  he  grants  i:i  the  form  which 
it  assumes  at  the  time  he  transfers  it.  '  If  the  grantor  has  al- 
ready treated  this  portion  as  a  separate  property  the  mode  in 
which  he  enjoyed  it  or  suffered  it  to  be  enjoyed  affords  a  very 
proper  indication  of  what  rights  over  his  remaining  land  he 
intends  to  pass  accessory  to  it.'     (Phear  on  Waters,  73.) 

225;    19  Pac.  Rep.  573,    the    Court  .See    also   Doiintll    vs.    IImii|)li- 

held   that    a   coiivt-yancc  of  hind  rcys,  i    Mont.  51S;    Swoelhiiid  v.s. 

with  its   "appurtenances"    is,  hy  Olscn,  1 1  Mont.   27;  27  I'ac.   Kcp. 

inipHcalion,  a   conveyance  of  the  345. 

grantor's  interest  in  a  ditch  and  '53<-''i'-  '35- 
water  right  necessriry  to  the  use 
and  enjoyment  of  the  land. 


432  NATURE  AND  EXTENT  OF  RlGHTg.  [§  267 

"  There  can  be  little  doubt  that  throughout  the  entire  pos- 
session of  the  IvUg-os  the^  waters  were  conducted  through  the 
zanja  to  Cottonwood  Row  and  for  purposes  of  irrigation.  The 
use  of  these  waters  to  the  extent  at  least  to  which  they  had 
been  previously  employed  may  have  been,  and  it  is  fair  to 
presume  was,  the  chief,  perhaps  only,  inducement  to  the  pur- 
chase by  plaintiifs  and  their  grantors.  To  authorize  judicially 
the  diversion  and  material  reduction  of  the  waters  would  be  a 
violation  of  the  principle  that  they  took  with  all  the  apparent 
benefits  and  easements  belonging  to  their  purchase.  And  in 
cases  like  the  present  the  purchaser  is  entitled  to  the  benefi| 
of  the  easement  without  any  express  reservation  or  grant. 
(Pypervs.  Carter,  i  H.  &  N.  Exch.  and  Exch.  ch.  916.)  The 
word  '  appurtenances  '  is  not  necessary  to  the  conveyance  of 
the  easement.  The  general  rule  of  law  is  that  when  a  party 
grants  a  thing  he  by  implication  grants  whatever  is  incident 
to  it  and  necessary  to  his  beneficial  enjoyment.  The  incident 
goes  with  the  principal  thing.  The  idea  and  definition  of  an 
easement  to  real  estate  granted  is  a  privilege  off  and  beyond 
the  local  boundaries  of  the  lands  or  tenements  conveyed."  ' 

1  Also  see  the  case  of  McDonald  rights  appertaining   thereto  does 

vs.  The  Bear  River  &  A.  \V.  Co.,  not    necessarily     cunstitule     said 

13  Cal.  220,  where  the  Court  held  ditch   and   water  rights   appurte- 

that  if  the  right  to  use   water  was  nances  of  a  mining  claim.     Upon 

acquired  by  appropriation  for  the  one  who  asserts  that  a  ditch  and 

purpose  of  operating  a  mill  on  the  water  rights  are  appurtenant  to  a 

stream  such  a  right  would  pass  by  mining  claim  is  cast  the  burden  of 

transfer  of  said  mill  property  to  a  proving  that  such  is  the  fact, 

vendee  as  an  appurtenance  thereto.  Smith  vs.  Logan,  18  Nev.  149. 

But  the  case  of  Gannocchio  vs.  When  a  canal  or  aqueduct  has 
Amador  C.  &  M.  Co.  (67  Cal.  493),  been  constructed  in  two  separate 
held  that  in  order  that  the  water  parts  by  different  contractors  at 
power  of  a  mill  may  pass  with  a  different  times,  the  two  sections 
conveyance  of  the  mill  it  must  be-  being  fed  in  part  from  different 
long  to  the  mill  and  must  be  the  sources,  the  Supreme  Court  of  the 
property  of  the  owner  thereof  at  United  States  has  decided  that  the 
the  time  of  the  transfer  of  the  two  sections  constitute  separate 
iiiill-  and  distinct  works,  the  water  sup- 
Also  the  case  of  Quirk  vs.  Falk  ply  of  the  one  must  be  held  not 
(47  Cal.  453),  where  it  was  held  an  appurtenance  of  the  other  sec 
that  the  purchase  by  a  mining  tion.  South  Fork  Canal  Co.  vs 
company    of   a   water   dilch    and  Gordan,  6  Wall.  561. 


§268] 


riATURE  AND  EXTENT  OF  IIIGIITS. 


433 


§208.  Sumo.— C'outiimoil.— The  authorities  hold  that  if  a 
mill  be  granted,  reserved  or  devised,  either  with  or  without 
the  word  "  appurtenances,"  that  it  includes  all  the  appurten- 
ances in  use  or  in  their  appropriate  position  and  owned  by  the 
grantor  at  the  time  of  the  conveyance;  these  also  include  the 
water  privileges  appurtenant  and  essential  to  the  mill  as  cor- 
poreal hereditaments.^ 

If  a  tract  of  land  in  the  arid  west  is  conveyed,  to 
which  the  grantor  then  had  a  water-right  absolutely  essential 
and  necessary  to  the  enjoyment  of  the  land  conveyed  and 
used  for  irrigation  purposes,  unless  especially  reserved  in  the 
granting  instrument  itself  it  conveys  the  water-right,  even 
if  the  word    "  appurtenances  "  is  not  in  the  instrument. - 

This  question  has  been  repeatedly  passed  upon  by  the  Courts 
of  the  States  in  the  arid  west  as  well  as  those  of  the  eastern 
States.  Indeed,  it  is  a  rule  in  accordance  with  natural  justice 
and  reason  that  where  one  sells  a  house  or  a  farm  every  right 
will  pass  to  the  purchaser  which  is  necessary  to  the  complete 
use  and  enjoyment  of  the  property  conveyed,  unless  expressly 


Reynolds  vs.  Ilosnier,  51  Cal. 
205;  Weill  vs.  Baldwin,  64031.476; 
Fresno  Canal  Co.  vs.  Dunbar,  So 
Cal.  530. 

1  Blake  vs.  Clark,  6  Greenl.  436; 
Maddox  vs.  Goddard,  15  Maine, 
218;  Baker  vs.  Bessey,  73  Maine, 
472,  478;  Seavey  vs.  Jones,  43  N. 
H.  441;  Miller  vs.  Miller,  15  Pick. 
57;  Pettee  vs.  Hawes,  13  Pick.  323; 
Prescott  vs.  White,  21  Pick.  341; 
Crittenden  vs.  Field,  8  Gray,  621; 
Hapgood  vs.  Brown,  102  Mass.  453; 
Richardson  vs.  Bigelow,  15  Gray, 
146;  Frink  vs.  Branch,  16  Conn. 
260,  273;  Smith  vs.  Modus  Water 
Power  Co.,  35  Conn.  392;  Bru;:jcr 
vs.  Butler,  6  0rej^on.  459;  Jackson 
vs.  Trullinger,  9  Oregon,  393;  Bank 
of  North  America  vs.  Miller,  7 
Sawyer,  163,  170;  6  Fed.  Rep.  545; 
Gibson  vs.  Brockv^'ay,  8  N.  II.  465; 
Wickersham  vs.   Bills,  8  Ind.  387; 


Iladden  vs.  Shutz,  15  111.  5S1 
Lcggettvs.  Kerton,2  Rich.  (S.  C.) 
156;  Page  vs.  Ksty,  54  Maine,  319; 
Wall  vs.  Cloud,  3  Humph.  181; 
Neadcrhousor  vs.  State,  38  Ind. 
257;  Simmons  vs.  Cloonan,  81  N. 
Y.  557.  Hill  vs.  National  Bank,  97 
U.  S.  450;  Swasey  vs.  Brooks,  30 
Vt.  692;  34  Vt.  451;  Spaulding  vs. 
Abbott,  55  N.  H.  423;  Tucker  vs. 
Jones,  8  Mont.  225. 

2 See  Cave  vs.  Crafts,  53  Cal.  135. 
Ill  Sweet  land  vs.  Olscti,  11 
Mont.  27;  27  Pac.  Rep.  339,  the 
Court  held  that  n  conveyance  of 
land  "with  all  apj)urten.'inccs " 
conveys  the  grantors  wiitt-r  right 
necessary  to  its  use  and  enjoy- 
ment. 

Sec    also    Winware    vs.    U'orksr 
(Orcgon).   27   Pac.    Re]).    7;    Coon- 
radt  vs.  Hill,  79  Cal.  587;    21    Puc. 
Rep.  1099. 


434  NATURE  AND  EXTENT  OF  RIGHTg.      [§  268,  269 

reserved  in  the  instrument  of  conveyance  itself.  Take  for 
example  the  case  of  a  person  in  the  arid  region  who  owns  a 
farm  or  an  orange  grove  which  is  wholly  dependent  for  water 
upon  the  right  of  the  owner  to  divert  a  certain  quantity  from  a 
neighboring  stream,  and  perhaps  also  upon  a  right-of-waj' over 
the  land  of  another  person  for  his  ditch  to  convey  the  water  to 
the  place  at  which  it  is  needed;  then  to  carry  our  illustration 
still  further,  let  us  suppose  that  the  water  of  a  stream  was  all  ap- 
propriated by  the  owner  of  the  land  and  by  others;  then  the 
owner  sells  the  land,  and  leaves  out  the  word  "appurtenances" 
— perhaps  designedly — from  the  deed  conveying  the  land.  The 
Courts  would  hold  under  these  circumstances  that  bj^  the  con- 
veyance of  the  tract  of  land  ' '  every  right  will  pass  to  the  pur- 
chaser which  is  necessary  to  complete  the  use  and  enjoyment 
of  the  property  conve5^ed  unless  expressly  reserved  in  the  in- 
strument of  conveyance."  If  the  law  was  otherwise  the 
grantor  could  sell  the  naked  land  to  one  and  the  right  to  ap- 
propriate the  water  which  was  an  absolute  necessit}^  to  the  en- 
joyment of  the  land  to  another,  and  thereby  deprive  the 
grantee  of  the  land  of  anj'  chance  to  get  water  with  which  to 
irrigate  the  crops  or  trees  growing  upon  the  same.  Of  course 
where  the  water-right  has  been  sold  before  the  date  of  the 
conveyance  of  the  land  or  is  especially  reserved  in  the  deed  the 
case  is  different.^ 

§  269.  Same. — Autliorities  Discussed. — Upon  this  subject 
of  appurtenances  the  Supreme  Court  of  Montana,  in  the  case 

1  In  the  case  of  Bell  vs.  Sausalito  he  had  no  title,  and  afterwards 
Land  and  Ferry  Co.,  recently  de-  purchased  the  same  with  its  ap- 
cided  by  the  Supreme  Court  of  purtenances,  and  sold  the  lot  on 
California,  33  Pac.  Rep.  449,  facts  which  was  the  tank.  In  the  con- 
were  that  the  plaintiff,  with  defen-  veyance  to  plaintiff  no  mention 
dant's  consent,  conducted  water  was  made  of  the  right  to  use  the 
to  a  tank  on  his  lot  from  a  spring  spring,  but  there  was  evidence 
on  defendant's  lot.  Thereafter  he  that  he  understood  that  he  might 
took  possession  of  another  lot  use  it  so  long  as  the  defendant 
owned  by  the  defendant  and  con-  did  not  need  it.  The  Court  held 
ducted  water  to  the  latter  lot  from  that  plaintiff  had  no  water 
the  tank.  Having  used  the  water  right  in  the  spring  appurtenant  to 
about  eight  years  he  surrendered  the  lot.  See  *also  Coventon  vs. 
the  possession  of  the  lot  to  which  Senfert  (Or.),  32  Pac.  Rep.  508. 


§269]  NATURE  AND  EXTENT  OF  RIGHTS.  435 

of  Tucker  vs.  Jones, ^  said:  "Easements  or  servitudes  are 
either  personal  or  real,  as,  for  instance,  when  a  right  of  way 
is  granted  in  favor  of  a  particular  person  or  persons,  the  sale 
of  the  estate  will  not  carry  with  it  the  right  which  is  confined 
to  the  persons;  but  where,  by  distinction,  a  right  of  way  at- 
taches to  and  in  favor  of  a  certain  house,  farm,  ranch  or  plan- 
tation, or  a  certain  right  of  drainage  exists  in  favor  of  the 
farm,  or  the  use  of  a  certain  ditch  and  water  for  the  irrigating 
of  a  farm  they  will  pass  by  deed,  even  without  the  use  of  the 
word  'Appurtenances;'  for  the  acquisition  of  the  easement  or 
servitude  was  intended  for  the  benefit  of  the  estate,  and  by 
destination  is  to  be  considered  as  incidental  to  the  use  of  and 
as  a  part  and  parcel  of  the  realt}'.  As  was  well  said  in  the  case 
of  Cave  vs.  Crafts,^  '  the  word  appurtenances  is  not  necessary 
to  the  conveyance  of  the  easement.  The  general  rule  of  law  is 
that  where  a  party  grants  a  thing  he  by  implication  grants 
whacever  is  incident  to  it  and  necessary  to  its  beneficial  enjoy- 
ment. The  incident  goes  with  the  principle  thing.  The  idea 
and  definition  of  an  easement  to  real  estate  granted  is  a  privilege 
off  and  beyond  the  local  boundaries  of  the  lands  conveyed.'  "  ^ 
The  fact  that  the  owner  of  a  lower  tract  of  land  acquired 
title  through  purchase  of  possessory  rights  merely,  and  not  by 
deed,  does  not  affect  his  title  to  the  water  rights,  as  they  pass 
as  appurtenant  to  the  land,  a  complete  title  to  which  as  well  as 
possession  thereunder  and  possessory  rights  were  obtained 
through  the  sale.^ 

18  Mont.  225;  19  Pac.  Rep.  573.  72  Cal.  477,  where  the  action  was 

2  52  Cal.  135.  brought   to  enjoin  the  defendant 

3  Cave  vs.  Crafts,  53  Cal.  135;  as  Sheriff  from  selling  the  intt-rest 
Donnell  vs.  Humphreys,  i  Mont.  of  a  plaintiff  in  a  ditch  and  the 
530;  Farmer  vs.  Ukiah  W.  Co.,  56  water  flowing  therein  under  a 
Cal.  15;  Smith  vs.  Cooley,  65  Cal.  judgment.  The  court  held  that 
47;  Phear  vs.  Waters,  73;  Angell  the  interest  of  the  plaintiff  in  the 
on  Water  Courses,  153  A.  See  late  ditch  and  the  water  wasappurten- 
cases  of  Frank  vs.  Hicks,  (Wyo.)  ant  to  and  a  part  of  his  hoine- 
35  Pac.  Rep.  475,  and  McPhail  vs.  stead,  and  was  not  liahlc  to  he 
Forney  et  al.  35  Pac.  Rep.  773.  sohl  under  the  judgment;  und  that 
See  Post  Sec.  488.  the  judgment  creditor  having  ob- 

•iGeddis  vs.  Parish,  i  Washing-  tained  a  personal  judgment 
ton  St.  587;  21  Pac.  Rep.  3i4-  against  the  i)laintiff   for    his  pro- 

See  the  case  of  Fitzell  vs.  Leaky,       portion   of    the   construction    ex- 


436 


NATURE  AXD  EXTEXT  OF  RIGHTS. 


[§270 


§  270.  Same.— Colorado  Rule.— But  the  Colorado  Courts 
seem  to  hold  differently  from  the  courts  of  California.  In  the 
case  of  Burnham  vs.  Freeman,^  the  Supreme  Court  said: 
"  The  law  recognizes  but  two  ways  of  acquiring  by  purchase 
an  ownership  interest  in  such  a  ditch.  One  is  by  deed,  or 
prescription  which  presupposes  a  grant,  and  the  other  by  con- 
demnation. An  interest  in  such  a  ditch  is  an  interest  in 
realty.     It  can  not  pass  by  a  mere  verbal  sale."^ 

Also  in  the  case  of  Bloom  vs.  West,'^  decided  on  March  27, 
1893,  Mr.  Justice  Reed,  in  rendering  the  opinion  of  the  Court 
of  Appeals  of  that  State,  said:  "In  the  decree  it  is  said, 
after  describing  the  land,  the  water  decreed  shall  pass  'as  an 
appurtenance  to  said  land;'  and  counsel  upon  the  trial  appear 
to  have  been  in  harmony  with  the  Court  in  regarding  the 
water  as  an  appurtenant  to  the  land.  This  view  originated 
either  in  a  misconception  of  the  law  or  in  the  unfortunate  use 
of  a  word  for  want  of  a  better.  Webster  defines  'appurten- 
ance' as  'that  which  belongs  to  something  else,  an  adjunct;  an 


penses  could  not  claim  that  the 
plaintiff's  title  to  the  ditch  was 
conditional  under  full  payment. 

See  also  Painter  vs.  Passadena 
Land  Co.,91  Cal.74;  27  Pac.Rep.  539. 

In  the  recent  case  of  Clyne  vs. 
Benicia  Water  Co.  (Cal.)  34  Pac. 
Rep.  714,  where  the  facts  were, 
that  the  defendant  company  made 
a  contract  with  the  owner  of  the 
land  on  a  stream,  whereby  the 
latter  conveyed  to  it  the  right  to 
take  water  from  the  stream  and 
to  maintain  a  water  pipe  through 
her  land,  in  consideration  of 
which  defendant  agreed  to  put  a 
one  inch  tap  in  said  main  pipe 
wherefrom  the  land  owner  could 
draw  free  of  cost  the  water  needed 
for  irrigation  and  domestic  pur- 
poses. Defendant  supplied  such 
water  as  would  flow  through  the 
tap  mentioned.  Some  years  later 
the  land  was  sold  under  mortgage 


placed  thereon  prior  to  the  above 
agreement,  and  conveyed  to  the 
plaintiff.  The  court  held  that  the 
right  to  such  water  as  would  flow 
through  the  inch  tap  was  ap- 
purtenant to  the  land  and  passed 
to  the  plaintiff. 

Ill  Colo.  606;  19  Pac.  Rep.  761. 

2See  also  Yunker  vs.  Nichols,  i 
Colo.  551;  Oppenlander  vs.  Left 
Hand  Ditch  Co.  (Colo.)  31  Pac. 
Rep.  854,  where  the  Court  held, 
that  irrigation  rights  acquired  by 
the  owner  of  land  and  represented 
by  his  stock  in  a  ditch  company, 
do  not  become  inseparably  at- 
tached to  the  land  in  connection 
with  which  the}'  are  acquired  to 
be  used;  and,  if  the  owner  dis- 
poses of  the  stock  in  the  company, 
he  or  his  grantees  have  no  further 
claim  to  such  rights  for  the  pur- 
pose of  irrigation. 

3  (Colo.)  32  Pac.  Rep.  846. 


§270]  NATURE  AND  EXTENT  OF  RIGHTS.  -137 

appendage;  something  annexed  to  another  thing  more  worthy.* 
etc.,  Blackstone  defines  'appurtenance;'  'belonging;  pertain- 
ing; incident;  as  a  right  of  way  appurtenant  to  lands  or 
buildings.'  Bov.  Law  Die,  'things  belonging  to  another 
thing  as  principle  and  which  pass  as  incident  to  the  principle 
thing;'  and  this  definition  is  sustained  by  numerous  legal  de- 
cisions, both  English  and  American.  Technically,  property 
tangible  and  corporeal,  capable  of  sale,  of  transfer  and  of  use 
in  another  place,  can  not  be  regarded  as  appurtenant  to  land. 
It  must  be  incorporeal;  an  easement;  a  servitude.  In  Co. 
I/itt.  121,  it  is  said  'that  nothing  can  be  appurtenant  unless 
the  thing  agrees  in  quality  and  nature  to  the  thing  whereunto 
it  appertaineth,  as  a  thing  corporeal,  properly,  can  not  be  ap- 
purtenant to  a  thing  corporeal,  nor  a  thing  incorporeal  to  a 
thing  incorporeal;'  and  this  legal  fact  is  recognized  to  the 
present  day.  According  to  the  recent  legal  proceedings  a 
party  who  owns  lands  and  the  right  to  use  water  from  an  ir- 
rigating ditch  or  canal  has  t\yo  separate  and  distinct  rights  of 
property,  either  of  which  could  pass  by  assignment  or  con- 
veyance regardless  of  the  other.  Hence  the  right  to  the  use 
of  water  for  irrigation  from  an  artificial  canal  for  conveying  it 
can  not  be  regarded  as  appurtenant  to  the  land  technically, 
nor  at  common  law."  Then  after  referring  to  the  decision  in 
the  case  of  Strickler  vs.  City  of  Colorado  Springs,'  the  Court 
said:  "  In  that  case  it  was  held  that  water  originally  applied 
to  specific  lands  for  irrigation  could  be  sold;  taken  out  at  dif- 
ferent points;  could  be  carried  in  a  different  ditch,  in  no  way 
connected  with  the  land;  and  could  by  the  purchaser  be  ap- 
plied to  a  different  and  a  distinct  use — clearly  recognizing 
two  separate  and  distinct  estates,  entirely  disconnected,  one 
in  the  land  and  the  other  in  the  water.  At  the  time  of  the 
trial  of  this  case  the  decision  had  not  been  made,  but  it  will 
readily  be  seen  that  it  is  utterly  repugnant  to  the  idea  of  water 
as  'appurtenant'  under  any  circumstances." 

1  i6  Colo.  6i;  26  I'ac.  Rep.  313.  vs.  Hicks,  35  Pac.    Rep.  475,  uiul 

As  to  rulings  of  Supreme  Court       I'osl  Note  to  Sec.  4SS. 
of  Wyoniinj^on  subject  see  l-'raiik 


CHAPTER  IX. 


Nature  and  Extent  of  Rights  to  Waters  Acquired  in  the 
Arid  Region  by  Others  Than  Appropriators. 


Section. — 

271.  Contents  of  chapter. 

I.    RIGHTS   ACQUIRED    BY    RIPAR- 
IAN  OWNERS. 

272.  Appropriation  by  riparian 

proprietors. -Western  Amer- 
ican Doctrine. 

273.  Riparian    rights    and    irriga- 

tion. 

274.  Same. — Authorities     dis- 

cussed. 

275.  The  extent   to   which   water 

may  be  diverted  for  irriga- 
tion. 

276.  What  is  a  reasonable  use  by 

riparian  owners. 

277.  Same. — Authorities  cited. 

278.  Same. — Authorities   on    sub- 

ject continued. 

279.  Same. — Continued. 

280.  Surplus   water    must    be  re- 

turned to  natural  streams. 

281.  Riparian  owner  and  prior  ap- 

propriator  at  the  same  time. 

282.  Same. — Authorities   dis- 

cussed. 
2S3.  Same. — Authorities  con- 
tinued. 

284.  No     right    to     irrigate    non- 

riparian  lands. 

285.  Conveyance   of  water  rights 

by  riparian  proprietors. 

286.  Mere  possession  gives  no  ri- 

parian rights. 

287.  Riparian  rights    in   artificial 

water  courses. 


Section.— 

288.  Riparian  owners   estopped 

when  ? 

II.  RIGHTS     ACQUIRED     UNDEK 
MEXICAN  AND  SPANISH  LAWS. 

289.  Mexican  laws. — In  general. 

290.  Rights    acquired    in    waters 

under  Mexican  laws. 

291.  Same. — Authorities   dis- 

cussed. 

292.  Legal  effect  of  laws  of  United 

States   upon    Mexican 
grantees'  rights. 

III.  NATURE     AND     EXTENT      OF 
RIGHTS    IN   WATER   ACQUIRED 

BY   PRESCRIPTION. 

293.  Prescription  in  arid  west. 

294.  Prescription  as  against  an  ap- 

propriator. 

295.  Prescription  as  against  ripar- 

ian owners. 

296.  Same. — Authorities    dis- 

cussed. 

297.  Prescription    as   against  any 

other  right. 

IV.  NATURE     AND     EXTENT     OF 
RIGHTS     ACQUIRED    IN   SUBTER- 
RANEAN  WATERS    IN   THE 

ARID   WEST. 

298.  Subterranean   water   courses 

— Percolating  waters. 

299.  Same. — Authorities    dis- 

cussed. 


§271,272]         RIGHTS   IN   THE   ARID    REGION.  439 

§  271.  Contents  of  Cluipter.— In  this  chapter  wo  will  show, 
in  the  first  place,  how  the  common  law  rights  of  riparian 
owners  are  modified  or  extended  in  the  arid  region,  especially 
their  right  to  divert  the  water  from  natural  streams  and  lakes 
and  apply  it  to  the  purpose  of  irrigation;  second,  rights  that 
had  vested  under  and  bj'  virtue  of  a  Mexican  or  Spanish  grant 
before  the  southwestern  portion  of  the  United  States  was  ac- 
quired by  this  country;  and  third,  the  nature  and  extent  of 
rights  in  and  to  waters  that  may  be  acquired  by  prescription; 
also  a  discussion  upon  the  nature  and  extent  of  rights  acquired 
in  subterranean  waters  in  the  arid  west. 

I.  Rights  Acquired  ])y  Riparian  Owners. 

§  '212.  Appropciation  l)y  Riparian  Proprietors— >Vestern 
American  Doctrine. — We  have  seen  in  a  former  chapter  that 
under  the  strict  common  law  rule  of  riparian  rights,  as  recog- 
nized by  the  English  authorities  and  also  those  of  some  of  the 
eastern  States,  a  riparian  owner  must  so  use  the  waters  of  the 
stream  as  not  to  materially  diminish  it  in  quantity  or  alter  it 
in  quality. 1  Also,  that  most  of  the  States  formed  from  the 
arid  region  adopted  as  a  part  of  their  jurisprudence  the  com- 
mon law  of  England.  Hence  it  follows  that  there  are  two 
distinct  systems  or  rules  of  law  that  govern  the  use  of  the 
waters  flowing  in  the  natural  streams  and  lakes  of  the  arid 
west — right  to  the  use  of  the  water  by  an  appropriation  of  the 
same,  and  right  to  its  use  by  virtue  of  an  ownership  of  the 
soil  over  or  adjoining  which  the  stream  runs.  Of  these  two 
systems,  one  has  its  foundation  in  the  equal  rights  of  n//  the 
riparian  owners  upon  the  stream  to  the  flow  of  the  current  in 
its  natural  or  accustomed  channel  without  material  diminution 
in  quantity  or  alteration  in  quality,  regardless  of  any  priority; 
and  the  other,  which  is  almost  the  converse  of  the  first  has 
for  its  basis  a  right,  by  virtue  of  priority,  and  without  any 
ownership  of  the  soil  being  necessary,  to  appropriate  and  di- 
vert the  water  from  its  natural  channel,  without  obligation 
upon  the    part    of   the  appropriators  to  turn  any  of  it  back 

1  See  Ante  Ch:t])lLT  III.  Sections  57,  60. 


440  RIGHTS    IN    THE    ARID    REGION.         [^  272,  273 

into  the  natural  stream;  and  if  it  is  necessary  for  his  purpose 
and  within  the  extent  of  his  appropriation,  to  use  the  whole 
of  the  water  of  the  stream. 

These  two  systems  are  antagonistic  in  their  very  foundation 
principles,  and  therefore  antagonistic  when  it  comes  to 
the  application  of  those  principles.  Had  the  Government  of 
the  United  States  taken  as  much  pains  in  disposing  of  the 
waters  of  the  public  domain  in  as  uniform  and  systematic  a 
manner  as  it  did  of  the  public  lands  in  the  arid  region,  over 
which  those  waters  ran,  and  the  greater  portion  of  which 
lands  are  absolutely  worthless  without  the  application  of  the 
water,  the  laws  regarding  water  rights  would  not  be  in  their 
present  unsettled  and  inharmonious  condition.  But  it  is  not 
the  purpose  of  this  work  to  debate  what  the  law  ought  to  be  or 
what  it  might  be,  but  what  it  is.  And  we  will  now  proceed 
to  discuss  the  general  nature  and  extent  of  rights  of  riparian 
proprietors  in  and  to  the  waters  of  the  streams  in  those  States 
in  the  arid  west  where  the  common  law  riparian  rights  are 
recognized  and  protected. 

§  273.  lliparian  Iligiits  and  Irrigation. — In  some  of  the 
States  and  Territories  of  the  arid  west  the  common  law  theory 
of  riparian  rights  has  been  entirely  abolished;^  in  others  it 
has  been  modified  to  a  great  extent;  and  in  still  others  it  ex- 
ists with  but  few  modifications  of  the  common  law  as  it  is  in- 
terpreted by  the  Courts  of  England  and  the  Eastern  States. ^ 
We  have  shown  in  a  former  chapter^  that  although  irrigation 
of  the  soil  under  certain  circumstances  was  perhaps  allowed 
under  the  strict  application  of  the  common  law  theories,  it 
was  so  restricted  by  certain  rules  and  restraints  placed  upon 
its  practicable  workings  that  those  theories  unmodified  were 
found  to  be  wholly  inapplicable  to  irrigation  as  it  is  known 
and  applied  in  the  "  Great  Arid  West."-  In  that  part  of  the 
countr)^  in  order  to  make  the  soil  productive,  there  must  be 
an  application  of  the  waters  of  the  streams  upon  it.     In  order 

1  See  Part  Second.  under   the    rules  of    the   various 

2  The  exact  difference  and  mod-  States. 
ifications   will   be   discussed   in  a  3  Sections  68,  8o 
subsequent    part    of     this     work 


§273,274]       RIGHTS  in  the  auid  iir.ciox  441 

to  apply  it  to  the  soil  there  must  be  an  aLiual  diversion  from 
the  natural  stream;  and,  owing  to  the  previous  soil,  the  hot 
sun  and  dry  atmosphere,  a  certain  loss  or  diminution  in  quan- 
tity must  necessarily  follow  as  a  result  of  its  application  and 
use  for  irrigation.  Hence,  in  all  of  the  States  and  Territories 
in  the  arid  west,  even  in  those  where  the  common  law  theories 
are  most  strongly  applied  to  riparian  rights,  there  has  been  a 
modification  of  these  theories  to  this  extent,  that  a  riparian 
proprietor  may  take  water  from  the  stream  and  may  make  a 
reasonable  use  of  it  for  purposes  of  irrigation.^  It  is  consid- 
ered in  the  Pacific  States  and  Territories  that  irrigation  must 
be  held  in  that  climate  "  to.be  a  proper  mode  of  using  water 
by  a  riparian  proprietor,"  and  the  lawful  extent  of  the  use 
depends  upon  the  circumstances  of  each  particular  case.- 

§274.  Same. — Authorities  Discussed. — In  a  case  decided 
by  the  Ninth  United  States  Circuit  Court,  Union  Mill  &  Min- 
ing Co.  vs.  Ferris,^  Mr.  Justice  Hillyer,  in  rendering  the  opin- 
ion of  the  Court,  said:  "To  lay  down  the  arbitrary  rule 
contended  for  by  the  defendant,  and  say  that  one  proprietor 
on  the  stream  has  so  unlimited  a  right  to  the  use  of  the 
water  for  irrigation  seems  to  us  an  unnecessary  destruction  of 
the  rights  of  other  proprietors  upon  the  stream  who  have  an 
equal  need  and  an  equal  right.  The  more  we  examine  the 
more  we  become  impressed  with  the  wisdom  of  the  common 
law  rule,  that  each  proprietor  may  make  a  reasonable  use  of 
the  stream,  and  that  what  that  is  depends  upon  the  circum- 
stances of  the  case.  It  will  also  be  seen  from  the  rule  as 
before  stated  that  the  question  of  reasonable  use  is  not  to  be 
determined  solely  by  the  wants  of  the  party  using  the  water— 

1  Union  M.  &  M.  Co.  vs.  Ferris,  vs.  TanKcnian,  65  Cal.  334;  l-'crrca 

2  Sawyer,  176;  Union  M.  &  M.Co.  vs.  Knipe,  28  Cal.  343;  IVrcj^'oy  vs. 

vs.    Dangberg,     2     Sawyer,     450;  McKissick,  79  Cal.  572;  Sliarj)  vs. 

Ellis  vs.  Tone,  58  Cal.  289;  Ana-  Hoffman,  79  Cal,  404. 

helm  W.  Co.  vs.  Semi-Tropic  W.  2jones  vs.  Adams,  19  Ncv.  7S;  6 

Co.,  64  Cal.   185;  Lux  vs.  Hag^in,  Pac.    Rep.  442;   Union   Mill   &  M. 

69  Cal.  255;  Swift  vs.  Goodrich,  70  Co.  vs.  I-erris,   2   Saw.   176;   Lowe 

Cal.   103;  Coffman  vs.  Robbins.  S  vs.    Shaffer   (Ore.),    33  l'^'^'-    Kfp- 

Oregon,   278;  Mud  Creek   Ir.  Co.  67H. 

vs.  Vivian,  74  Texas,  170;  Learned  '-^2  Sawyer,    195. 


442  RIGHTS    IN    THE    ARID    REGION.  [§274 

whether  the  amount  is  reasonably  sufficient  for  his  own  law- 
ful purposes— but  reference  must  also  be  had  to  the  rights  and 
needs  of  other  proprietors  upon  the  stream.  '  The  necessities 
of  one  man's  business  cannot  be  made  the  standard  of  another 
man's  rights  in  a  thing  which  belongs  equally  to  both.'  i 

"No  more  definite  rule  can  be  safely  laid  down  which  will 
be  of  universal  application.  *  *  *  Irrigation  must  be 
held  in  this  climate  to  be  a  proper  mode  of  using  ivater  by  a 
riparian  proprietor,  the  lawful  extent  of  the  use  depending 
upon  the  circumstances  of  each  case.  With  reference  to  these 
circumstances  the  use  must  be  reasonable,  and  the  right  must 
be  exercised  so  as  to  do  the  least  possible  injury  to  others; 
there  must  be  no  unreasonable  detention  or  consumption  of 
the  water.  That  there  may  be  some  detention  follows  neces- 
sarily from  any  use  whatever.  How  long  it  may  be  detained 
or  how  much  it  may  be  diminished  can  never  be  stated  as  an 
arbitrary  or  abstract  rule." 

And  in  a  case  decided  by  the  Supreme  Court  of  Nevada, 
Jones   vs.    Adams, ^  the    Court    upon    this   subject  observed: 

When  it  is  said  that  such  use  must  be  made  of  the  water  as 
not  to  affect  the  material  rights  of  other  proprietors  it  is  not 
meant  that  there  cannot  be  any  diminution  or  decrease  of  the 
flow  of  the  water;  for  if  this  should  be  the  rule  then  no  one 
could  have  any  valuable  use  of  the  water  for  irrigation,  which 
must  necessarily  in  order  to  be  beneficial  be  so  used  as  to 
absorb  more  or  less  of  the  water  diverted  for  this  purpose. 
The  truth  is  that  under  the  principles  of  the  common  law  in 
relation  to  riparian  rights,  if  applicable  to  our  circumstances 
and  condition,  there  must  be  allowed  to  all,  of  that  which  is 
common,  a  reasonable  use.  If  the  judgment  had  been  based 
upon  the  findings  in  relation  to  riparian  rights  it  would  there- 
fore have  been  at  least  as  favorable  to  respondent  as  it  now  is. 
The  Court  would  not  have  given  either  party  the  right  to 
absolutely  divert  any  portion  of  the  water  away  from  the 
stream,  nor  allowed  to  either  any  definite  quantity  or  portion 


1  Citing  Wheatley  vs.  Christman,       lo  Allen,  447;  Hays  vs.   Waldron, 
24  Penn.  St.   302;  Brace  vs.   Yale,       44  N.  H.  583-4. 

2  19  Nev.  84;  6  Pac.  Rep.  442. 


§274,275]       RIGHTS  in  the  arid  region.  -143 

for  the  purposes  of  irrigation,  but  would  have  given  to  each 
a  reasonable  use  of  the  water  and  determined  the  question  of 
reasonable  use  by  the  particular  facts  and  circumstances  as 
revealed  by  the  evidence." 

In  the  case  of  I,ux  vs.  Haggin,^  the  Court  held  that  by  the 
laws  of  that  State  riparian  proprietors  are  entitled  to  a  rea.son- 
able  use  of  the  waters  of  a  stream  for  the  purposes  of  irriga- 
tion; and  what  is  a  reasonable  use  is  a  question  of  fact,  and 
depends  upon  the  circumstances  appearing  in  each  particular 
case.  Also  in  the  case  of  Swift  vs.  Goodrich,-  the  Court  said: 
"  A  riparian  proprietor  may  take  water  from  the  stream  for 
necessary  household  purposes,  and  may  make  reasonable  use 
of  it  for  irrigation."^ 

From  these  authorities  there  can  be  no  question  as  to  the 
authority  of  riparian  owners  of  the  western  States  to  divert 
the  waters  of  a  stream  which  runs  through  or  adjoins  their 
lands,  and  we  will  consider  next  the  extent  to  which  he  may 
so  divert  it. 

§  275.  The  Extent  to  Wliicli  Water  May  be  l>iveile<l  for 
Irrigation. — A  riparian  proprietor  is  not  entitled  to  tiivert 
and  use  all  the  water  of  a  stream  for  irrigation  without  regard 

to  the  wants  and  necessities  of  other  riparian  proprietors,  al- 
though the  amount  so  diverted  and  used  was  no  more  than 
necessary  for  the  irrigation  of  his  lands,  as  is  the  case  with 
those  who  claim  the  water  by  virtue  of  a  priority  of  appropria- 
tion,^ unless  the  proprietor  lays  claim  to  the  water  as  a  prior 
appropriator  as  well   as  a  riparian  proprietor.     In  the  latter 

1  69  Cal.  255,   394,  409;   10  Pac.  disuse  does  destroy  or  suspend  it. 

Rep.  674.  The  right  in  each  extends  to  the 

270  Cal.  105.  natural  and  usual   flow  of  all  the 

3  Citing  Lux  vs.  Haggin,  69  Cal.  water,  unless  wlicre  the  (juantity 

255.     See   also    Coffman   vs.   Rob-  has   been   diniinishetl   as  a  ronse- 

bins   8  Ore.  278.  quence  of  the  reasonable  aj)plica- 

By  the  common  law  the  right  of  tion  of  it  by  other  riparian  own- 

the  riparian  proprietor  to  the  flow  era. 

of   the  stream  is   inseparably  an-  Lux  vs.  Ilaggin,   supra;  Unrncs 

nexed  to  the  soil,  and  passes  with  vs.  Sabron,  10  Nev.  217. 

it,  not  as  an  easement  or  appurten-  •»  See     ante      Sections      225-227; 

ant  but  as  a  part  and  parcel  of  it.  Tnion  M.  &  M.    Co.  vs.    l-erris,   2 

Use  does  not  create  the  right  and  Sawyer,  176,   Hale    vs.    Mcl.tn.    53 


444  RIGHTS    IN    THE    ARID    REGION.  [§275 

case  the  rules  applicable  to  prior  appropriators  will  apply.  In 
fact  there  is  but  one  instance  where  a  riparian  proprietor  is 
permitted,  under  the  laws  of  the  western  States,  to  divert  and 
use  all  of  the  waters  of  a  stream.  An  upper  riparian  proprietor 
is  entitled  to  take  from  the  stream  as  much  water  as  is  necessary 
for  watering  his  cattle  and  for  domestic  uses,  even  when  such 
necessities  may  consume  all  the  water  of  the  stream.^  Mr. 
Washburn,  in  his  work  on  "Easements  and  Servitudes," 
sums  up  these  principles  in  the  following  language:  "  The 
right  of  a  riparian  proprietor,  J2ire  naturae,  to  divert  water 
from  a  stream  when  reduced  to  a  simple  proposition  seems  to 
be  this,  he  may  not  do  it  for  any  purpose  except  domestic 
uses  and  that  of  irrigating  his  land;  whether  and  to  what  ex- 
tent he  may  do  the  latter  depends  in  each  particular  case  upon 
whether  it  is  reasonable,  having  regard  to  the  condition  and 
circumstances  of  other  proprietors  upon  the  stream,  and  this  is 
to  be  determined  in  all  cases  of  doubt  by  a  jury.  But  in  no  case 
may  he  do  this  so  as  to  destroy  or  render  useless,  or  materially 
diminish,  or  affect  the  application  of  the  water  by  other  pro- 
prietors. "^  In  lyux  vs.  Plaggin,  cited  above,  the  Court  said: 
"  An  entire  diversion  of  a  water  course  by  an  upper  riparian 
proprietor  for  irrigation  is  never  allowed." 

The  owner  of  land  through  or  along  which  a  natural  stream 
flows  has  a  right  to  the  reasonable  use  of  the  water  of  such 
stream  during  its  passage,  but  has  no  right  in  the  corpus  of 
the  water. ^ 

Cal.  578;  Ellis  vs.   Tone,   58   Cal.  and  for  his  stock.    See  also  Ferrea 

284;   Learned   vs.    Tangeman,    65  vs.  Knipe,   28  Cal.  340;    Hale    vs. 

Cal.    334;   Gould   vs.   Stafford,   77  McLea,    53    Cal.     578;     L,ux    vs. 

Cal.  66.  Haggin,  69  Cal.  255. 

As    to    liability   of    lessors   see  2  Washburn  on  Easements  and 

Same   vs.    Same,    91    Cal.   146;    27  Servitudes,  2nd.  Ed.  p.  240,  12. 

Pac.  Rep.  543;  and  Same  vs.  Same,  ^  Union  M.  &  M.   Co.  vs.  Dang- 

35  Pac.  Rep.  427.  I'erg,   2   Sawyer,    450;    Eddy    vs. 

1  Union  M.  &.  M.  Co.  vs.  Dang-  Simpson,  3  Cal.  249;  Crandall  vs. 

berg,    2   Sawyer,  450,    where   the  Woods,  8  Cal.  136;  Kidd  vs.  Laird, 

Court  held  that  in  the  exercise  of  15   Cal.   161;   Hale  vs.  McLea,   53 

his   common  right  each   riparian  Cal.  57S;  Pope  vs.  Kinman,  54  Cal. 

proprietor  may  consume  so  much  3;  Lux  vs.   Haggin,  69   Cal.    255; 

of  the  water  as  is   necessary  for  Weiss   vs.    Oregon    Iron  &   Steel 

household  and  domestic  purposes  Co.,  13  Ore.  496. 


§276]  RIGHTS    IN    TUK    ARID    REGION.  145 

§  270.  What  is  a  Reasonable  Use  bv  Kipariaii  Owners.— 

A  reasonable  use  of  the  waters  of  a  stream  by  a  riparian  pro- 
prietor may  be  defined  as  any  use  that  does  not  work  actual, 
material,  and  substantial  damage  to  the  common  right  which 
each  proprietor  has,  as  limited  and  qualified  by  the  precisely 
equal  right  of  every  other  proprietor. •    What  will  be  construed 
as  a  reasonable  use  by   the  riparian   proprietor  depends  en- 
tirely upon  all  the  facts  and  circumstances  of  each  particular 
case  considered  not  only  with  regard  to  any  one  proprietor's 
right,  but  WMth  regard  to  the  rights  of  all  whose  lands  adjoin 
or  are  divided  by  the  stream.     It  is  impossible  to  lay  down 
any  definite  rule  that  will  be  of  universal  application.     It  is 
necessary  to  take  into  consideration  the  character  of  the  soil 
and  the  climate;  the  actual  amount  of  water  needed  to  make 
a    certain    tract  of  land  productive;    the    nature    and    size 
of   the    stream,   including  the    water    flowing    therein,  and 
the  uses  to  which-it  can  be  or  is  applied.     It  is  also  neces- 
sary to   determine  the  nature  and  importance  of  the  use  for 
which  it  is  claimed  and  exercised  by  one  party  as  well  as  the 
inconvenience  or  injury  to  all  other  owners  upon  the  stream; 
the  proportion  of  water  diverted,  compared  with  the  whole 
volume  of  the  stream;  the  quantity  lost  by  evaporation  and 
absorbed  by  the  soil;  the  manner  of  diverting  the  water  from 
the  natural  stream  and  conducting  it  to  the  place  where  it  is 
needed;  the  mode  in   which  it  is  used;  the  quantity  of  land 
under  cultivation;  the  kind  of  crops  to  be  irrigated  and  their 
need  of  water;  the  means  adopted  for  returning  the  water  to 
its  natural  channel;  the  season  of  the  year,  and  whether  there 
is  low  or  high  water,  and  all  other  matters  bearing  upon  the 
question  of  fitness  and   propriety  in  the  use  of  water  by  the 
riparian  owner.     The   diversion    must  be    rea.sonable  in  the 
light  of  all  the  evidence  and  circumstances  of  each  particular 
case.     In  other  words,  it  must  not  be  unreasonable  and  with- 
out regard  to  the  rights  and  necessities  of  other  riparian  pro- 
prietors. 


1  Union  M.  &.  M.  Co.  vs.  Daiigberg.   2  Saw.  450;    '''"<   vs.  IlaKgin, 
69  Cal.  255. 


446  RIGHTS    IN    THE    ARID    REGION.  [§  277 

§  277.  Sxame.— Authorities  Cited.— Upon  this  proposition 
a  late  California  case  held:^  "  Assuming  that  in  this  State  an 
upper  riparian  proprietor  has  the  right  to  use  a  reasonable 
amount  of  the  water  of  a  natural  stream  running  through  his 
premises  for  irrigating  his  riparian  land,  still  he  has  not  the 
right  for  that  purpose  to  take  all  the  water  which  flows  in  the 
stream  at  the  point  where  he  diverts  it;  and  if  the  defendant 
did  (as  the  evidence  tends  to  show)  thus  take  all  the  water 
flowing  at  the  point  where  it  was  diverted  his  act  in  so  doing 
was  wrongful.  What  would  be  a  reasonable  amount  of  water 
for  irrigation  is  a  question  that  must  depend  upon  the  par- 
ticular circumstances  of  each  case  in  which  it  arises,  and  it  is 
a  question  which  will  often  be  of  difficult  solution;  but  it  is 
clear  that  in  no  case  can  he  for  that  purpose  as  against  a  lower 
proprietor  use  all  the  water  of  the  stream.  That  could  be 
done,  if  at  all,  only  where  the  whole  of  the  water  was  abso- 
lutely necessary  for  strictly  domestic  purposes  and  to  furnish 
drink  for  man  and  beast.  "^ 

In  a  very  late  case  decided  by  the  Supreme  Court  of  Cali- 
fornia, in  March,  1892,  in  Harris  vs.  Harrison,"^  the  Court  held 
that  the  common  law  rules  as  to  riparian  rights  are  so 
far  modified  in  that  State  that  an  upper  riparian  proprietor 
has  the  right  to  the  reasonable  use  of  the  water  of  a  natural 
stream  for  irrigating  the  riparian  land  where  irrigation  is  nec- 
essary, although  such  use  may  appreciably  diminish  the  flow 
down  to  the  lower  riparian  proprietor;  but  he  does  not  have 
the  right  to  absorb  all  the  water  of  the  stream,  so  as  to  allow 
none  to  flow  down  to  the  lower  riparian  proprietor.  Mr. 
Justice   McFarland,  in  rendering  the  opinion  of  the  Court, 

1  Gould  vs.  Stafford,  77  Cal.  67.  lands  in  the  natural  flow,  except 
As  to  liability  of  riparian  owners  a  given  number  of  inches,  is 
as  lessors  see  Same  vs.  Same,  91  erroneous,  since  defendant  would 
Cal.  146;  27  Pac.  Rep.  543;  and  also  thereby  be  deprived  of  the  reason- 
35  Pac.  Rep.  427.  able  use  of  any  part  of  the  water 

2  In  an  action  by  a  lower  riparian  for  irrigation  or  other  necessary 
owner  to  restrain  the  diversion  by  purposes  as  riparian  proprietor, 
an  upper  owner  of  the  waters  of  a  Van  Bibber  vs.  Hilton,  84  Cal.  585; 
stream,  a  decree  ordering  that  the  24  Pac.  Rep.  308;  Stanford  vs.  Felt, 
whole  of  the  water  be  allowed  to  71  Cal.  249:  16  Pac.  Rep.  900. 
flow    unrestricted     to     plaintiff's  893  Cal.  676;  29  Pac.  Rep.  325. 


§277J  RIGHTS    IN    THE   ARID    REOim'.  117 

said  upon  the  subject:  "According  to  tlic  common  law  doc- 
trine of  riparian  ownership,  as  generally  declared  in  Kngland 
and  in  most  of  the  American  States  upon  the  facts  in  the  case 
at  bar,  the  plaintiffs  would  be  entitled  to  have  the  waters  of 
Harrison  canon  continue  to  flow  to  and  upon  their  land  as 
they  were  naturally  accustomed  to  flow,  without  any  sub- 
stantial deterioration  in  quality  or  diminution  in  quantity. 
But  in  some  of  the  western  and  southwesteni  States  and 
Territories,  where  the  year  is  divided  into  one  wet  and  one 
dry  season,  and  irrigation  is  necessary  to  successful  cultiva- 
tion of  the  soil,  the  doctrine  of  riparian  ownership  has  by 
judicial  decision  been  modified  or  rather  en/ari^ed,  so  as  to  in- 
clude the  reasonable  use  of  natural  water  for  irrigating  the 
riparian  land,  although  such  use  may  appreciably  diminish 
the  flow  down  to  the  lower  riparian  proprietor.  And  this 
must  be  taken  to  be  the  established  rule  in  California,  at 
least  where  irrigation  is  thus  necessary.  (Lux  vs.  Haggin, 
69  Cal.  394.)  Of  course  there  will  be  great  difficulty  in  many 
cases  to  determine  what  is  such  reasonable  use;  and  '  what  is 
such  reasonable  use  is  a  question  of  fact,  and  depends  upon 
the  circumstances  appearing  in  each  particular  case.'  (Lux 
vs.  Haggin,  69  Cal.  394.)  The  larger  the  number  of  riparian 
proprietors  whose  rights  are  involved,  the  greater  will  be  the 
difficulty  of  adjustment.  In  such  a  case  the  length  of  the 
stream,  the  volume  of  water  in  it,  the  extent  of  each  owner- 
ship along  the  banks,  the  character  of  the  soil  owned  by  each 
contestant,  the  area  sought  to  be  irrigated  by  each — all  these 
and  many  other  considerations  nmst  enter  into  the  solution  of 
the  problem;  but  one  principle  is  surely  established,  namely, 
that  no  proprietor  can  absorb  all  the  water  of  the  stream  so  as 
to  allow  none  to  flow  down  to  his  neighbor. 

"  In  the  case  at  bar  only  the  rights  of  two  riparian  proprie- 
tors are  to  be  considered;  none  other  are  involved.  And  the 
amount  of  water  in  the  stream  is  so  small  that  it  is  apparent 
that  defendants  could  not  use  it  for  any  useful  irrigation  with- 
out practically  absorbing  it  all,  and  leaving  none  to  flow  down 
to  plaintiffs'  land.  There  was  sufficient  evidence  to  warrant 
the  finding  of  the  Court  that  in  order  to  irrigate  '  it  is  neces- 
sary that  the  full  flow  of  the  stream   be  used  at  once.'      Hut 


448  RIGHTS    IN    THE    ARID    REGION.  [§277,278 

defendants  as  well  as  plaintiffs  were  entitled  to  a  reasonable 
use  of  the  water  for  irrigation;  and  the  rights  of  neither 
could  be  declared  or  preserved  by  an  attempted  division  of 
the  flow  of  the  water  without  reference  to  time.  The  only- 
way,  therefore,  to  preserve  those  rights  and  render  them 
beneficial  was  to  decree  to  the  parties  the  use  of  the  full  flow 
of  the  stream  during  alternate  periods  of  time;  and  we  do  not 
see  why  the  Court  could  not  decree  a  division  of  the  use  of 
the  water  according  to  the  method  by  which  it  could  be  done. 
And  that  the  division  was  a  just  one  and  not  erroneously  de- 
termined upon  seems  clear.  The  evidence  showed  that  the 
arable  and  irrigable  lands  of  each  party  was  about  equal  in 
area;  and  there  is  no  contention  that  the  division  was  not 
equitable,  provided  that  all  the  other  facts  were  correctly 
found  by  the  Court." 

§278.  Same. — Autliorities  on  Subject  Continued. — Upon 
the  subject  of  reasonable  and  unreasonable  use,  Mr.  Justice 
Hillyer,  of  the  Ninth  United  States  Circuit  Court,  in  the  case 
of  Union  M.  &  M.  Co.  vs.  Dangberg,^  after  citing  a  number 
of  authorities  upon  the  subject,  said:  "  From  these  authorities 
it  appears  that  the  use  which  is  unreasonable  is  such  as  works 
actual,  material  and  substantial  damage  to  the  common  right; 
not  to  an  exclusive  right  to  all  the  water  in  its  natural  state, 
but  to  the  right  which  each  proprietor  has  as  limited  and 
qualified  by  the  precisely  equal  right  of  every  other  proprie- 
tor. The  rule  leaves  the  common  right  equal  in  times  of 
plenty  and  of  scarcity.  Because  the  river  is  low  and  there  is 
not  sufficient  water  to  drive  plaintiff's  mill  the  proprietors 
above  cannot  be  debarred  from  all  use.  They  may  still  use 
the  water,  taking  care  to  do  no  material  injury  to  the  com- 
mon right  of  plaintiff",  having  regard  to  the  then  stage  of  the 
river." 

In  the  case  of  Weiss  vs.  Oregon  Iron  &  Steel  Co.,^  the 
Court  said:  "  Such  use  of  a  stream  by  riparian  owners  is,  to 
some  extent,  a  question  of  degree,  and  in  all  such  cases  the 
right  and  capacity  of  the  stream  is  to  be  considered.  The 
amount  taken  from  a  large  running  stream  which  would  cause 

1  2  Sawyer,  459.      2  13  Oregon,  496;  11  Pac.  Rep.  257. 


§278,279]       RIGHTS  in  the  arid  rkgion.  449 

no  sensible  or  practical  diminntion  of  its  benefits  to  a  lower 
proprietor  would  if  taken  from  a  small  stream  materially 
diminish  its  quantity  and  work  a  manifest  injury.  What  is 
a  reasonable  use  must  necessarily  depend  upon  the  facts,  con- 
sidering the  size  of  the  stream  and  the  amount  appropriated. 
But  all  the  authorities  concur  that  when  the  amount  abstracted 
perceptibly  or  materially  diminishes  the  quantity  of  a  stream 
such  use  of  it  by  a  riparian  owner  is  unreasonable  and  an  in- 
fringement on  the  rights  of  other  riparian  owners,  for  which 
the  law  furnishes  redress."  As  the  converse  of  this  right  of 
the  riparian  proprietor  to  a  reasonable  use  of  the  waters  for 
irrigation,  we  will  say  that  the  authorities  hold  that  every 
proprietor  of  land  through  which  flows  a  stream  of  water  has 
a  right  to  the  use  of  the  water  flowing  in  its  natural  chainiel 
without  diminution  or  obstruction,  except  so  far  as  upper 
riparian  owners  may  use  said  water  for  domestic  use,  stock 
and  reasonable  irrigation.^ 

§  270.  Same. — Continued. — So  sacred  do  the  common  law- 
authorities  hold  this  right  of  the  riparian  owners  to  the  flow 
of  the  water  in  its  natural  channel  without  materal  diminu- 
tion or  obstruction  that  they  even  go  so  far  as  to  hold  that  an 
owner  above  in  protecting  his  own  land  from  injury  cannot 
cut  off  the  water  of  the  stream  by  a  dam,  if  it  obstructs  or 
diminishes  the  flow  of  a  stream  for"  those  below  him.  The 
facts  in  the  case  of  Bliss  vs.  Johnson^  were  that  the  defend- 
ant's lands  were  in  danger  of  being  flooded  by  other  parties 
above  in  letting  in  an  additional  supply  of  water  to  that  which 

1  Taylor  vs.  Welch,  6  Ore.   198;  and  cause  it  to  overflow  and  irri- 

Hayden    vs.    Loii}^,    8    Ore.    244;  jjate  his  land,  provided  it  resumes 

Coffman  vs.  Robbins,  8  Ore.  278;  its  natural    channel   before  it  eu- 

Shively    vs.    Hume,    10    Ore.    76;  ters  the  land  of  a  lower  proprie. 

Shook  vs.  Colonian,    12  Ore.   239;  tor,  and  he  is  not  liable  for  injury 

See  case  of  Toole  vs.  Correth,  31  to  such  proprietor  unless  he  wan- 
Texas,  362;  98  Am.  Dec  540,  where  tonly  and  maliciously  uses  the 
the  Court  held:  An  upper  appro-  stream,  and  takes  more  water  than 
priator  of  land  in  which  orij^iuateil  is  necessary  for  a^jricultural  pur 
a  spring  for"ii"K 'I  stream,  runniuK  poses, 
through  his  land  and  into  the  land  --](•>  Cal.  597. 
of  another,  may  <livert  the  stream 


450 


RIGHTS    IN   THE    ARID    REGION.         [§279,280 


naturally  flowed  in  the  stream.  The  defendant  constructed  a 
dam  and  cut  off  the  flow  of  all  the  water  from  the  natural 
channel  and  diverted  it  in  another  direction  in  order  to  pro- 
tect his  own  lands.  And  the  Court  held  that  the  plaintiff 
being  an  owner  of  land  below  the  dam  adjoining  the  stream 
had  a  right  to  the  free  flow  of  the  water  to  his  land  without 
obstruction,  and  that  the  defendant  had  no  right  to  divert  the 
water,  even  to  protect  his  land  from  injury  which  the  addi- 
tional quantity  of  water  produced. 

Mr.  Gould  in  his  work  on  Waters  says  on  this  subject: 
"  The  extent  of  each  proprietor's  right  to  thus  withdraw  the 
water  depends  upon  the  circumstances  of  the  case.  The  owner 
of  a  large  tract  of  porous  land  abutting  on  one  part  of  the 
stream  could  not  lawfully  irrigate  such  land  continually  by 
canals  and  drains,  and  so  cause  a  serious  diminution  of  the 
quantity  of  water,  although  there  may  be  no  other  loss  to  the 
natural  stream  than  that  arising  from  the  natural  absorption 
and  evaporation  of  the  water  employed  for  the  purpose."  ^ 

§  280.  Surplus   Water  Must  Be  Returned  to    Natural 

Stream. — The  riparian  proprietor  is  entitled  to  use  only  so 
much  of  the  water  of  the  stream  as  will  not  diminish  its 
quantity  to  the  injury  of  other  riparian  proprietors  located 
below  him;  and  he  may  use  it  for  irrigation  or  for  any  other 
useful  or  beneficial  purpose,  provided  he  returns  the  water  to 
its  natural  channel  before  it  reaches  his  neighbor  below,  so 
that  the  stream  will  flow  by  his  land  without  any  essential 
diminution.  This  is  the  common  law  rule  of  England  and 
the  eastern  States;  and  it  is  also  the  rule  in  those  States  and 
Territories  in  the  arid  region  which  recognize  and  protect  the 
common  law  riparian  rights.-  Such  proprietor  has  the  right 
to  use  the  water  for  the  purpose  of  irrigation  as  an  incident  to 
his  ownership  to  the  land;  the  right  is  not  acquired  by  user, 

I  Gould  on  Waters,  Section  217.  Dangberg,  2   Sawyer,  454;  Gould 

2 See    Ante    Sections   276,     279;  vs.   Stafford,    77  Cal.   66;   18   Pac. 

Lux  vs.  Haggin,  69Cal.  397;  Union  Rep.  879;  Same  vs.  Same,  91  Cal. 

M.  &  M.  Co.  vs.  Ferris,  2  Sawj'er,  146;  27  Pac.  Rep.  543;  and  also  35 

198;    Weiss   vs.    Oregon   Iron    &  Pac.  Rep.   427;    Harris   vs.  Harri- 

Steel  Co.,  13  Oregon,  496;  11  Pac.  son,  93  Cal.  676;  29  Pac.  Rep.  325. 
Rep.  257;  Union  M.  &  M.  Co.  vs. 


§280]  RIGHTS    IN    THE    ARID    REGION.  451 

but  is  classified  by  the  common  law  authorities  as  belon^nng 
to  the  extraordinary  uses  to  which  water  may  be  applied  by 
riparian  proprietors. i  The  only  limitation  to  his  use  is,  as  we 
may  see  by  referring  to  the  authorities,  that  he  must  so  use 
the  water  as  to  cause  no  actual  material  damage  to  any  other 
riparian  proprietors;  but  a  cause  of  action  against  him  may 
arise  when  no  actual  damage  has  resulted  from  his  unreason- 
able use  of  the  water.  One  riparian  proprietor  has  no  right 
to  permanently  divert  from  another,  in  the  technical  sense, 
any  portion  of  the  water  so  that  it  either  does  not  return 
to  the  stream  at  all  or  until  it  has  passed  the  land  of  him 
below.  Such  a  diversion  would  be  a  clear  violation  of  right, 
and  if  continued  adversely  for  the  requisite  statutory  period 
would  ripen  into  a  title  by  adverse  possession.  An  action, 
therefore,  would  lie  for  an  injury  to  the  right  by  the  lower 
proprietor,  without  proving  any  actual  damage  or  showing 
that  the  lower  proprietor  was  making  any  practical  use  of  the 
water. 2 

The  Supreme  Court  of  California,  in  the  case  of  Stanford 
vs.  Felt,^  laid  down  the  doctrine  upon  this  subject  as  follows: 
"  By  the  common  law  of  England  the  right  of  the  riparian 
proprietor  to  the  flow  of  the  stream  is  inseparably  annexed  to 
the  soil  and  passes  with  it.  Not  as  an  easement  or  appurte- 
nant, but  as  a  part  and  parcel  of  it.  Use  does  not  create  the  right, 
and  disuse  cannot  destroy  or  suspend  it.  The  right  of  such  pro- 
prietor extends  to  the  natural  and  usual  flow  of  all  the  water 
of  the  stream,  unless  when  the  quantity  has  been  diminished 
as  a  consequence  of  a  reasonable  use  or  appropriation  of  it  by 
other  riparian  owners  for  proper  and  legitimate  purjioses. 
The  use  by  the  riparian  owner  for  domestic  purposes,  for  irri- 
gation and  for  the  propulsion  of  machinery  are  recognized  as 
proper  and  legitimate  purposes.  This  we  regard  as  the  law  of 
this  State.  It  appears  to  be  the  law  that  where  all  the  water 
of  a  stream  is  needed  for  domestic  purposes  and  for  watering 
cattle,  and  is  thus  consumed  by  one  proprietor,  the  law  allows 
such  use.      But  in  making  such   rcasonal)le  use  of  water  the 

IvSee  Ante  vSectioiis  6«,  79.  see    post    Chiii)ler    XI..    Siiti(»ii» 

2 See    authorities    cited    above;       321,329. 

'^71  Cal.  24y;  i<>  Tac.  Rep    yoo. 


452  RIGHTS    IJv^    THE    ARID    REGION.         [,^  280,  281 

proprietor  must  return  the  surplus  which  remains  after  such 
use  to  the  natural  channel  of  the  stream;  and  if  this  is  not 
done  the  diversion  will  be  restrained  at  the  suit  of  a  riparian 
owner  below.  Nor  is  the  owner  lower  down  the  stream  re- 
quired to  show,  in  order  to  procure  an  injunction,  any  actual 
present  damage.  The  diversion  by  lapse  of  time  might  grow 
into  a  right.  To  prevent  such  result  an  injunction  will  be 
awarded."  ^ 

§381.  Ilipariuu  Owner  and  Prior  Appropriator  at  the 
Same  Time. — There  are  a  great  many  cases  where  the  ripar- 
ian proprietor  is  also  the  prior  appropriator  of  the  water  of  a 
stream.  His  rights  are  limited  to  those  of  a  riparian  proprie- 
tor only  when  others  whose  rights  would  be  injured  by  the 
diversion  before  he  has  made  an  appropriation  of  the  waters 
have  settled  upon  the  stream.  If  a  person  enters  a  piece 
of  land  through  or  adjoining  which  a  stream  runs  and  appro- 
priates the  water  to  some  useful  purpose  before  other  persons 
have  entered  any  other  lands  upon  the  same  stream  he  stands 
in  the  position  of  a  prior  appropriator  and  may  divert  all  of  the 
water  of  the  stream  if  it  is  necessary  for  the  purpose  for  which 
he  appropriated  it,  without  any  obligation  upon  his  part  to 
return  any  portion  of  it  to  the  natural  channel.  Of  course  the 
purpose  for  which  the  appropriation  was  made  must  be  con- 
sidered. He  is  7ioi permitted  tmder  any  ciraanstances  to  waste 
the  water,  and  if  the  appropriation  is  for  running  a  mill,  the 
authorities  hold  that  after  he  has  used  the  water  he  must 
return  it  to  the  natural  channel  for  the  use  of  those  below. ^ 
But  on  the  other  hand,  if  the  purpose  for  which  the  water  is 

1  Citing  Ferrea  vs.  Knipe,  28  Cal.  R.  7    H.  L.  697;   Parker  vs.   Gris- 

340:87  Am.  Dec.  128;  Lux  vs.  Hag-  wold,    17  Conn.    287,  affirming  13 

gin,  69  Cal.  255;   Billing  vs.  Mur-  Coun.  279. 

ray,  6lud.  324;  63  Am.  Dec.  385;  2 in    McDonald  vs.    Askew,    29 

3   Kent's    Com.    439;    Miller    vs.  Cal.  200,  it  was  held  that  the  in- 

Miller,  9  Penn.  St.  74;  49  Am.  Dec.  terest  acquired  by  an  appropriator 

545;  Gould   on   Waters,    213,  214;  for  mill  purposes  was  not  a  prop- 

Crandall   vs.    Woods,    8   Cal.  136;  erty  in  the  water  as  such  but  a 

American  Co.  vs.  Bradford,  27  Cal.  right  to  the  momentum  of  its  fall 

360;  Moore  vs.  Clear  Lake  W.  W.,  at  the  point  where  the  stream  was 

68  Cal.  146;  L.  R.  19  Chan.  451;  L.  crossed  by  the  dam,   and  to  the 


§281,282]       RIGHTS  IX  THE  arid  region.  453 

appropriated  consumes  all  that  is  diverted,  as  is  some- 
times the  case  where  it  is  used  for  irrigation,  municipal  uses 
or  mining,  or  for  sale  to  others  to  be  used  by  them  for  some  of 
these  purposes,  the  authorities  hold  that  the  appropriator  ac- 
quires a  higher  right  and  is  under  no  obligation  to  return  any 
of  the  water  to  the  streams  even  if  he  consumes  it  all,  pro- 
vided, of  course,  that  none  of  it  goes  to  waste.' 

§282.  Same.— Authorities    Discussed.  —  Pomeroy    in   his 

work  on  Riparian  Rights,  upon  the  above  proposition,  says 
(Sec.  133):  "A  prior  appropriation  can  give  no  exclusive 
right  to  the  use  of  water  for  purposes  of  irrigation,  and  no 
superior  right  nor  preference  as  to  the  quantity  of  tlie  water 
consumed  for  such  purposes.  Whether  a  person  was  the  very 
first  one  who  acquired  title  to  lands  on  the  banks  of  a  given 
stream,  and  as  such  sole  owner  first  began  to  use  its  waters, 
or  whether  after  many  riparian  proprietors  had  acquired  their 
respective  titles  he  was  the  first  one  of  them  to  use  its  waters, 
in  either  case  the  prior  appropriation  can  give  no  right  to  use 
an  unlimited  quantity  or  an  excess  of  quantity  nor  any  other 
relative  superiority  in  the  use  of  the  water  for  irrigation  over 
all  the  other  private  riparian  proprietors  on  the  same  stream. 
The  doctrine  of  prior  appropriation,  as  has  been  shown,  is 
foreign  to  the  common  law.  So  far  as  recognized  by  the  law 
of  California  and  of  Nevada  it  is  confined  to  public  streams 
and  arose  from  local  customs  and  the  peculiar  needs  of  miners, 
although  it  was  extended  in  its  application  to  public  streams, 
to  other  businesses,  occupations  and  u.ses  besides  mining. 
The  fundamental  conception  of  the  common  law  system  is  the 
purely  equitable  principle  of  relative  equality  of  right  among 

flow    of  the   water  in  its    natural  'Ortiiiaii  vs.  Dixon,    13  Cal.    %4; 

cour.se  above  that  point  as  suhse-  McDonald  vs.  H.  R.  &  A.  W.  ^:  M. 

quent  to  that  end.  Co.,    13   Cal.    220;   McKinncy    vs. 

See  also  Kelly  vs  Natonia  Water  vSniith,  21  Cal.  jSt;  N.  C.  iS:   S.   C. 

Co.,  6  Cal.   loS;  Anj^ell  on  Water  Co.   vs.   Kidd,  37  Cal.  313;  Smith 

Courses  91,  96;  Kddy  vs.  Simpson,  vs.  O'llara,  43  Cal.  375;  Thorp  vi. 

3  Cal.  251;  Kidd  vs.  Laird,  15  Cal.  I-'recd.    1    Mont.  658;   J.i.WdclI    vs. 

179.  Simpson,    2    Nov.    277;    Sse  Ante 

Section  225-237. 


454  RIGHTS    IN    THE    ARID    REGION.  [§282 

all  the  private  riparian  proprietors  upon  the  same  stream. 
Nature  gives  to  all  the  riparian  proprietors  on  any  stream  an 
advantage  growing  out  of  their  location  over  other  owners 
whose  lands  do  not  adjoin  a  water-course;  and  this  natural  right 
cannot  betaken  away  by  the  law,  although  its  enjoyment  may 
be  interfered  with  or  prevented  by  arbitrary  legislation." 
With  all  due  respect  to  the  wisdom  of  Professor  Pomeroy,  we 
do  not  think  the  above  quotation  is  the  law  upon  the  subject 
in  the  arid  west  to-day.  As  will  be  seen  by  comparison  the 
rights  acquired  by  the  prior  appropriator  in  and  to  the  waters 
are  far  greater  than  those  rights  acquired  by  the  riparian 
owner.  Now,  wiiere  a  person  is  both  a  prior  appropriator  and 
a  riparian  owner  at  the  same  time,  that  his  right  should  be 
limited  simply  by  the  fact  that  he  had  a  title  to  the  land 
which  adjoined  the  stream  and  was  not  at  a  distance  from  it 
does  not  seem  to  be  reasonable,  and  we  do  not  think  that  under 
the  authorities  it  is  law.  Unfortunately  Mr.  Pomeroy  did  not 
cite  any  authorities  which  sustained  his  views  set  forth  in  the 
section  quoted.  We  admit  that  the  proposition  that  "the 
fundamental  conception  of  the  common  law  system  is  the 
purely  equitable  principle  of  relative  equality  of  right  among 
all  the  private  riparian  owners  upon  the  stream  "  is  the  com- 
mon law  theory  of  riparian  rights  upon  the  subject.  But 
when  appropriation //a^- /r^c^flf^flf  the  vesting  of  <2;iy  title  in  and 
to  the  soil  adjoining  the  stream  in  owners  other  than  the 
appropriator  himself  the  doctrine  of  the  common  law  declara- 
tory of  the  rights  of  riparian  proprietors  is  inapplicable;  and 
all  controversies  between  the  appropriator  and  those  who 
secured  a  title  to  their  lands  afterwards  as  to  the  prior  appro- 
priator's  rights  must  be  determined  by  the  application  of  the 
principles  of  prior  appropriation. 

There  seem  to  be  ver^'  few  authorities  upon  this  exact  point, 
but  in  the  case  of  Edgar  et  al.  vs.  Stevenson^  the  facts  were 
that  the  plaintiffs  were  the  owners  of  certain  lands  through 
which  a  stream  ran,  and  for  many  years  the  plaintiffs  and 
their  grantors  appropriated  and  used  all  of  the  waters  of  the 
stream  for  irrigation,  domestic  and  household  purposes,  ex- 

1 70  Cal.  286. 


§282]  RIGHTS    IN    THE    ARID    REGION.  4.')') 

cept  in  times  of  extraordinary  liigh  water  or  freshets;  that  all 
of  the  water  was  necessary  for  the  uses  for  which  it  was  ap- 
propriated, except  at  times  of  high  water;  that  the  defendant 
diverted  the  surplus  water  from  the  stream  during  the  time 
of  extraordinary  high  water,  when  there  was  more  than 
enough  for  the  needs  of  plaintiffs.  The  Supreme  Court  held 
that  the  plaintiffs  were  not  entitled  to  an  injunction  restrain- 
ing defendant  from  using  such  surplus,  but  that  they  were  en- 
titled to  a  judgment  restraining  the  defendant  fri)m  diverting 
any  of  the  waters  of  the  stream  at  its  ordinary  flow.  Thus 
holding  that  the  plaintiffs,  although  they  were  riparian  owners, 
were  entitled  to  all  the  waters  of  the  stream  at  its  ordinary 
flow  (as  against  a  subsequent  appropriator). 

In  the  case  of  Kaler  vs.  Campbell^  both  the  plaintiff  and 
defendant  derived  their  title  to  their  lands  from  the  United 
States  and  through  the  land  of  both  a  small  stream  ran.  The 
plaintiff  by  means  of  a  ditch  first  appropriated  a  portion  of 
the  water  of  the  stream  for  the  purpose  of  irrigation,  stock 
water  and  domestic  purposes;  and  needed  the  amount  of  water 
appropriated  for  such  purposes.  Subsequently  the  defendant 
diverted  and  appropriated  a  portion  of  the  waters  of  the  stream 
for  the  irrigation  of  his  land.  Both  diverted  the  water  near 
the  same  point  upon  the  creek  which  was  above  their  t)wii 
lands  and  upon  land  belonging  to  the  United  States.  .Subse- 
quently the  plaintiff  acquired  title  from  the  Ihiited  States  ti) 
the  land  above  upon  the  stream,  including  the  points  of  di- 
version of  both  himself  and  defendant.  The  plaintiff  brought 
an  action  in  equity  to  restrain  defendant  frcjm  diverting  the 
water  from  the  stream.  It  will  be  noticed  that  both  parties 
were  riparian  owners  and  both  appropriators.  And  upt)n  this 
statement  of  facts  the  vSupreme  Court  of  Oregon  .said:  "  Al- 
though some  other  questions  were  noted  at  the  argument,  the 
real  contention  in  the  case  is  as  to  the  amount  or  (piantity  of 
water  the  plaintiff  is  entitled  to  by  actual  jjrior  appropria- 
tion. And  this  is  purely  a  question  of  fact  and  to  be  deter- 
mined by  the  evidence.  The  basis  of  the  i)laintifl''s  rights  in 
the  premises,  and  also  of  the  defendant's,   rest  upon  Congres- 

1  !3  ()rc),'oii  5'/);  >'  l':»*-  R«'P-  .V>«- 


456  RIGHTS    IN    THE    ARID    REGION.  [§282 

sional  legislation.  With  the  doctrine  of  the  common  law  as 
applied  to  riparian  owners  we  have  nothing  to  do  upon  the 
facts  made  by  this  record.  It  seems  that  when  plaintiflFsettled 
his  claim  there  was  no  other  person  above  him  upon  the  stream 
running  through  his  land,  nor  any  appropriation  of  its  water. 
For  the  purpose  of  irrigating  his  soil  and  for  domestic  and 
stock  uses  he  went  above  his  land  and  upon  Government  land 
and  diverted  the  waters  of  Clover  creek.  This  he  had  a  right 
to  do  under  the  act  of  Congress,  and  to  the  extent  he  had 
actually  appropriated  and  used  he  had  a  vested  right  as  to 
that  amount  or  quantity  of  water,  and  whoever  afterwards 
purchased  above  or  below  him  took  subject  to  such  right  of 
prior  appropriation  actually  made  by  him.  When  afterwards 
the  defendant  acquired  the  title  to  the  adjoining  land  his  right 
to  appropriate  the  water  of  the  creek  to  irrigate  his  land  was 
subject  to  the  prior  appropriation  of  the  plaintiff,  and  neces- 
sarily limited  to  whatever  surplus  remained.  And  when, 
subsequent  to  this,  the  plaintiff  bought  of  the  Government  the 
land  above  his  claim,  where  both  he  and  the  defendant  by 
means  of  ditches  had  been  diverting  the  waters  of  the  creek  to 
their  own  lands  and  appropriating  the  same,  he  took  such  land 
from  the  Government  subject  to  the  amount  or  quantity 
actually  appropriated  by  the  defendant  in  such  surplus.  Thus 
the  rights  of  the  parties  stand.  Just  what  amount  the  plain- 
tiff appropriated  it  is  difficult  to  determine  from  the  evidence. 
It  is  certain  he  did  not  appropriate  all  the  water  of  the  creek, 
as  alleged . ' ' 

It  must  be  noticed  in  this  connection  that  in  the  State  of 
Oregon  the  authorities  are  inclined  to  protect  the  rights  of 
riparian  owners  as  far  as  they  can  be  protected.^ 


ISee  Weiss  vs.  Oregon  I.  &  S.  or  have  sustained  but  small  pecun- 
Co.,  13  Ore.  496;  II  Pac.  Rep.  255;  iary  damage,  and  although  defend- 
in  which  the  Court  held:  A  ripa-  ants  may  be  subjected  to  heavy  ex- 
rian  proprietor  owning  to  the  cen-  penses  if  compelled  to  restore  the 
ter  of  a  stream  is  entitled  to  the  aid  water  to  its  natural  channel, 
of  equity  to  prevent  a  diversion  of  Taj-lor  vs.  Welch,  6  Ore.  198  ; 
tlie  waters  from  their  natural  Hayden  vs.  Long,  8  Ore.  244;  Coff - 
channel,  although  he  may  have  man  vs.  Robbins,  8  Ore.  278; 
no  use  of  the  water-power  himself  vShively  vs.  Hume,  10  Ore.  76. 


§283]  iiuiiiTs  IN  THi:  Aini)  hkgiox.  -i')? 

§283.  Same— Authorities  ('«mtiiiiuMl.— In  a  very  recent 
case  decided  by  the  Supreme  Court  of  California.  Ilealy 
vs.  Woodruff,^  the  Court  held  upon  the  exact  point  in  ques- 
tion: the  fact  that  one  who  had  appropriated  for  irrij^ation 
purposes  a  certain  quantity  of  water  is  a  riparian  owner  on  the 
stream  from  which  the  water  is  taken  can  not  be  urged  aj^ainst 
his  right  afterwards  to  take  a  greater  quantity,  where  no 
other  rights  were  in  existence  at  the  time  or  for  years  after- 
wards. And  in  the  decision  of  the  Court,  Mr.  Justice  McFar- 
land  in  rendering  the  opinion  said:  "  It  appeared  that  the 
Court  held  that  because  the  plaintiff's  grantor  acquired  the 
title  to  some  land  on  the  stream,  and  thus  became  a  riparian 
owner,  he  could  not  afterwards  acquire  any  more  water  by 
appropriation,  and  that,  therefore,  his  enlargement  of  the 
ditch  in  the  winter  of  1873  and  1874  did  not  give  him  any 
rights  to  an  increased  flow  of  water  in  his  ditch  as  against  any 
one  who  years  afterwards  might  assert  riparian  rights  on  the 
stream  above  the  ditch.  But  this  position  is  clearly  unten- 
able. The  fact  that  the  plaintiff  or  his  grantor  was  a  riparian 
owner  does  not  warrant  the  conclusion  that  he  could  not  be  an 
appropriator.  *  *  *  ^\iq  notion  seems  to  be  that  beci)m- 
ing  a  riparian  owner  estoppes  one  in  some  sort  of  way  from 
being  an  appropriator  of  water,  although  there  was  no  one  in 
existence  in  whose  favor  the  estoppel  can  be  invoked.  When 
the  ditch  was  enlarged  there  was  no  person  having  any  rights 
on  the  stream  except  plaintiff's  grantor  himself,  and  therefore 
the  enlargement  of  the  ditch  encroached  upon  nobody's  vested 
or  prior  rights.  Respondents  argue  that  if  appellant's  posi- 
tion be  correct  the  first  riparian  owner  could  monopoli/.e  all 
the  waters  of  the  stream.  But  they  admit  that  an  appropria- 
tor who  is  not  a  riparian  owner  can  take  all  the  water  of  a 
stream  on  the  public  lands  if  he  be  the  prior  or  first  appro- 
priator; and  it  would  certainly  be  strange  if  the  first  comer  to 
a  stream  who  acquires  title  to  some  land  upon  it  has  less 
rights  to  the  water  of  the  .stream  than  one  who  owns  no  land 
there  at  all.  *  *  *  Counsel  comjilain  that  this  view  gives 
great  advantage  to  tlie  first  ])ossessor  and  appropriator  of  tlie 

I97  Cal.  .\<y\:  r-,2  I'.ir.    Rip.  .SJS. 


458  KIGHTS    IN    THE    ARID    REGION.  [§283,284 

water  of  the  stream.  This  is  no  doubt  true;  but  it  is  the  ad- 
vantage which  the  law  gives  and  which  necessarily  follows 
prior  occupancy  and  appropriation."^ 

§  284^.  No    Riglit   to    Irrigate    Non-Ripiiriau    Lands.— 

Whatever  may  be  the  right  of  an  upper  proprietor  to  a  reason- 
able use  of  a  part  of  the  water  of  a  stream  to  irrigate  his 
riparian  land,  he  has  no  right  to  take  any  of  it  away  to  irri- 
gate other  lands  not  riparian. ^ 

Neither  can  a  riparian  owner  authorize,  as  against  a  lower 
proprietor,  a  company  to  take  water  from  the  stream  to  be  con- 
ducted to  a  distance  and  sold. ^  Upon  this  point  Mr.  Pomeroy, 
in  his  work  on  Riparian  Rights,  says:  "The  common  law 
doctrines  restrict  the  use  of  waters  of  natural  streams  to  the 
lands  bordering  on  those  streams,  and  the  right  to  use  the 
waters  is  held  exclusively  by  the  private  owners  of  such  lands 
in  their  character  as  riparian  owners.  There  is  nothing  more 
completely  antagonistic  to  the  common-law  system,  nothing 
which  would  more  completely  destroy  the  equality  and  equity 
of  the  common  distribution  of  rights  among  all  the  private 
riparian  proprietors  on  any  particular  stream  than  the  appro- 
priation and  diversion  of  its  waters  by  means  of  ditches  or 
canals  for  the  benefit  of  lands  not  adjoining  the  stream,  by 
persons  who  are  not,  with  respect  to  such  lands,  riparian  pro- 
prietors. If  a  private  riparian  proprietor  owns  a  tract  of  land 
actually  bordering  on  the  stream  he  may  possibly  be  entitled 
to  use  the  water  for  that  purpose  of  irrigating  the  entire  tract, 

^  See  also  Elliot  vs.    Whitmore  Schaffer  (Ore.),  33  Pac.  Rep.  678, 

(Utah),  24  Pac.  Rep.  673,    where  it  was  held  that  after  the  needs  of  a 

the  Court  held  that  where  a  person  prior  appropriator  of  the  waters  of 

settles  upon  public  land  unsurvey-  a  certain  stream  are  satisfied  he 

ed  with  the  intention  of  acquiring  can  not  claim  as  riparian  proprie- 

title  as  soon  as  he  can  under  the  tor  that  he  is  entitled  to  have  the 

law,    and  appropriates  water    for  excess  flow  in  the  channel  of  the 

its  cultivation,  such  appropriation  stream. 

is  effective  from  its  date,  though  2  Gould  vs.  Stafford,   77  Cal.  66; 

that  may  he  several  years  before  18  Pac.    Rep.    879;    Williams    vs. 

he     succeeds    in    perfecting     his  Wadsworth,  51  Conn.  277. 

title.  ^^Heiibron  vs.  Canal  Co.,  75  Cal. 

In  the   recent  case  of  l^owe  vs.  426;  22  Pac  Rep.  62. 


§284,285]       RIGHTS  in  thk  akid  UEiiiox.  l.'O 

no  matter  how  orreat  may  be  its  extent,  how  far  clistaiu  trum 
the  stream  may  be  its  exterior  line;  but  his  right  to  use  a 
quantity  of  the  water  sufficient  for  that  purpose  must  depend 
upon  other  considerations  to  be  mentioned  hereafter.  It  is 
certain,  however,  that  no  person  can  take  water  from  such  a 
stream  for  the  purpose  of  irrigating  his  tract  of  land  which  is 
separated  from  the  stream  by  interv'ening  lands  belonging  to 
other  and  riparian  proprietors." 

In  the  late  case  of  Alta  Land,  etc.,  Co.  vs.  Hancock,'  the 
Supreme  Court  of  California  held  that:  All  land  bordering 
upon  a  stream  which  is  held  by  the  same  title  is  riparian  to 
the  stream;  and  the  area  of  lands  to  which  riparian  rights  are 
appurtenant  can  not  be  diminished  by  the  acts  of  trespasser 
segregating  for  the  time  being  the  actual  occupancy,  without 
segregation  of  title,  of  a  portion  of  the  tract  not  bordering  upon 
the  stream;  nor  can  the  use  of  all  the  waters  of  the  stream  for 
the  irrigation  of  such  portion  of  the  tract  either  render  the  use 
of  such  waters  non-riparian,  or  establish  it  as  a  fiict  that  there 
can  be  but  that  number  of  acres  riparian  to  the  stream. - 

A  non-riparian  owner's  right  to  running  water  enables  him 
to  restrain  an  upper  proprietor  from  interfering  with  such 
right  by  using  or  granting  the  water  which  is  not  riparian."' 

§  2S5.  ('oiiv(\vaiic('  of  Wsiler  Uii;hts  by  Kipariaii  Pro- 
prietors.— A  riparian  proprietor  may  convey  any  portion  ui 
his  land,  or  any  one  or  all  of  his  riparian  rights  in  and  to  the 
use  of  the  waters  of  the  stream,  either  together  with  the  land 
or  apart  from  each  other. ^  It  has  been  decided  many  times 
by  the  Supreme  Courts  of  the  States  and  Territories  founded 
out  of  the  arid  west,  as  well  as  by  the  Supreme  Court  of  the 
United  States,  that  the  waters  of  non-navigable  streams  in 
those  States  may  be  acquired  by  appropriation  for  any  or  all 
useful  or  beneficial  purposes.'"'  If  such  waters  can  be  acquired 
by  appropriation  the  authorities  hold  that,  a  prior/,  they  may 

ISsCal.  219.  :<  Heilhron  vs.   I<nsl  Chiiiu-«-    W. 

SHeilbron    vs.    Last   Chance  W.  Co..  75  Cal.  42<). 

Co.,  75Cal.  117;  Lux    vs.  HaKK>".  ^Crossvs.  Kitts.  '«,  Cal.    222;  i.> 

69  Cal.  390;  St.  Helena  Water  Co.  Vac.  Rep.  409. 

vs.  Forbes,  62  Cal.  1S2.  ''See  Ante  Section  17.V 


460  RIGHTS    IN    THE    ARID    REGION.  [^  285 

be  acquired  by  express  grant  of  the  owners  of  the  land  over 
which  they  riin.^ 

Mr.  Justice  Ross,  District  Judge  of  the  9th  Circuit  of  the 
United  States,  in  the  case  of  Doyle  vs.  San  Diego  ly.  &  Town 
Co.,^  rendered  a  very  able  opinion  upon  the  subject  in  which 
he  collects  the  authorities.  In  this  case  he  said:  "Being 
the  owners  in  fee  of  the  land  as  well  as  the  water,  it  was  com- 
petent for  them  to  grant  all  or  any  portion  of  either.  '  A 
grantor  of  land  through  which  a  stream  of  water  flows  may 
reserve  the  water  privilege,  or  he  maj'  convey  the  use  of  the 
water  in  whole  or  in  part,  leaving  the  fee  of  the  land  vested 
in  the  grantor.'  Gould,  Waters,  §  299.  '  A  grant  of  a  water 
course  in  law,'  says  Jessel,  M.  R.,  'especially  where  coupled 
with  other  words,  may  mean  any  one  of  three  things.  It  may 
mean  the  easement  or  the  right  to  the  running  of  water,  it 
may  mean  the  channel  pipe  or  drain  which  contains  the 
water,  and  it  may  mean  the  land  over  which  the  water  flows. 
What  it  does  mean  must  be  shown  by  the  context;  and  if 
there  is  no  context  I  apprehend  that  it  would  not  mean  any 
thing  but  the  easement, — a  right  to  the  flow  of  the  water.  A 
grant  of  a  'pool'  or  'gulf  or  of  a  'pond'  passes  the  land  which 
is  covered  with  water.  So  a  grant  of  a  'well'  or  'spring'  or 
'wharf  is  effectual  to  pass  the  soil  as  well  as  the  water.'  Id. 
§  304a.  B}^  the  deed  of  June  9,  1869,  the  owners  in  fee  of  all 
the  land  and  water  here  in  question  granted  to  the  Kimball 
Brothers  Water  Company,  its  successors  and  assigns,  'all  the 
water  flowing  in  the  stream  called  Sweet  Water  River,  *  *  ''^ 
in  said  county  of  San  Diego,  with  the  right  to  divert  the  same 
from  its  natural  channel  at  any  point  or  points,  and  to  con- 
duct the  same  over,  along  and  across  any  of  the  lands  of  the 
parties  of  the  first  part  (the  grantors)  in  said  county,  b}' means 
of  flumes,  canals  and  acqueducts,  together  with  free  ingress, 
egress  and  regress  to  and  for  the  said  party  of  the  second  part 
(The  Kimball  Brothers  Water  Company),  its  successors  and 
assigns,  and  its  and  their  servants  and  workmen,  with  horses, 

lBo,vle  vs.  vSan   Diego   L.   &  T.  vs.  Johnson,  26  Vt.  64;  Miller  vs. 

Co.,  46   Fed.  Rep.    709;   Cross  vs.  I^apham,    44    Vt.    416;    vSoule  vs. 

Kitts,  69   Cal.    222;    ID   Pac.    Rep.  Russell,  13  Met.  436. 

409;  Gould  on  Waters,  299;  Rood  '-^46  Fed.  Rep.  709. 


§285,286]       RIGHTS  in  the  arid  region.  401 

carts  and  carriages,  at  all  convenient  times  and  seasons,  in, 
along  and  upon  said  flumes,  cauAls  and  acqueducts,  for  the 
amending,  cleaning  and  repairing  of  the  same,  with  libert\- 
and  privilege  for  the  purpose  to  dig  and  to  take  stone  and 
earth  from  the  adjacent  lands  of  the  party  of  the  first  part, 
when  and  as  often  as  need  or  occasion  requires.  To  have  and 
to  hold,  all  and  singular,  the  premises  and  privileges  hereby 
mentioned  and  granted,  or  intended  so  to  be,  with  the  ap- 
purtenances, unto  the  said  party  of  the  second  part,  its  suc- 
cessors and  assigns.'  I  do  not  think  there  is  any  room  for 
mistake  in  respect  to  the  true  meaning  of  this  language.  It 
is  impossible  to  limit  its  scope  to  the  water  flowing  in  the 
river  at  the  instant  of  the  execiitiou  of  the  deed.  Such  a  con- 
struction would  be  absurd.  It  is  true,  as  said  by  complainant's 
counsel,  that  the  deed  does  not  use  the  words  all  waters 
'hereafter  to  flow'  in  the  Sweet  Water  River;  but  the  language 
employed  cannot  reasonably  be  construed  any  other  way  than 
as  embracing  the  waters  then  flowing  and  thereafter  to  flow  in 
that  river.  The  grantee,  its  successors  and  assigns,  were 
granted  the  right  to  divert  the  waters  granted  from  their  nat- 
ural channel  at  any  point  or  points.  Such  diversion  neces- 
sarily must  occur  subsequent  to  the  grant,  which  must  there- 
fore necessarily  include  the  waters  thereafter  flowing  in  the 
stream.  The  purpose  had  in  view  by  all  the  parties,  as  well 
as  the  language  used,  clearly  shows  that  the  grant  was  con- 
tinuous and  perpetual  in  its  nature,  and  included  not  only  the 
water  at  the  time  flowing,  but  thereafter  to  flow  in  the  stream 
in  question,  and  inured  not  only  to  the  benefit  of  the  grantee, 
but  in  express  terms  to  its  successors  and  assigns  as  well.  No 
legal  reason  exists  why  it  could  not.  The  water  in  question 
was  a  part  and  parcel  of  the  land  over  which  it  flowed,  and 
when  its  owners  granted  the  water  they  necessarily  granted  an 
interest  in  the  land,  which  interest  was  assignable,  descendible 
and  devisable." 

§  28G.     3Ien»  Possi'ssioii  (Hives  to  Riparian  Hii;li<s.     As, 

on  the  one  hand,  a  private  riparian  jiroprictor  has  no  rij^lit  by 
virtue  of  his  riparian  rights  to  irrigate  lands  wliich  are  not 


462  RIGHTS    IN    THE    ARID    REGION.  [§  286,  287 

strictl}''  riparian/  on  the  other  hand,  one  who  squats  upon  and 
occupies  or  cultivates  a  tract  of  land  bordering  upon  a  stream, 
without  acquiring  any  title  to  the  land,  acquires  no  riparian 
rights  to  irrigate  the  soil  in  his  possession,  or  any  other  ripa- 
rian rights  in  and  to  the  waters  of  a  stream.^  And  where  a 
party  has  a  contract  for  the  purchase  of  land  adjoining  a  river 
upon  conditions  not  yet  fulfilled  by  him  he  has  not  acquired 
the  fee,  and  the  doctrine  of  riparian  rights  can  not  be  invoked 
in  his  favor. ^  But  in  this  connection  a  distinction  must  be 
made  between  a  squatter  and  an  actual  and  bona  fide  settler 
upon  the  public  lands  under  the  laws  of  the  United  States. 
Even  though  the  latter's  rights  be  in  an  incomplete  and  in- 
choate condition,  ifhe  has  fully  complied  with  all  the  laws 
and  acquirements  relative  to  his  settlement  he  is  entitled  to 
all  the  riparian  and  other  rights  connected  with  the  land  as 
though  he  had  already  received  his  patent.'^  And  again,  one 
who  squats  upon,  occupies  and  cultivates  a  portion  of  riparian 
land  belonging  to  another,  claiming  adversely  under  the  be- 
lief that  it  is  Government  land,  cannot  gain  any  title  to  the 
use  of  the  waters  of  the  stream  by  diverting  and  using  them 
for  the  purpose  of  irrigating  such  land.'' 

§  287.  Riparian  Rights    in   Artificial   Water  Courses.— 

Rights  to  water  flowing  through  different  estates  in  an  arti- 
ficial channel,  such  as  a  canal,  acqueduct  or  ditch,  do  not  rest 
upon  the  same  principle  as  a  right  to  the  waters  of  rivers  and 
water  courses  flowing  in  their  natural  channels.  In  the  case 
of  riparian  ownership  upon  a  natural  stream  each  riparian 
owner  \~,pri7na facie  entitled  to  the  unimpeded  flow  of  the  w^ater 
in  its  natural  channel ,  without  material  diminution  in  quantity 
or  alteration  in  quality,   as   it  passes  through  his  land  as  a 

1  See  previous  section.  ^ Smith  vs.  Logan,   i8  Nev.   149; 

2Alta  L.  &  W.  Co.  vs.  Hancock,  i  Pac.  Rep.  678. 

85    Cal.    219;    24    Pac.    Rep.    645;  4  sturr  vs.   Beck,  6  Dak.  71;  af- 

Suiith  vs.   Ivogan,  18  Nev.   149;   i  firmed  in  133  U.  S.  541;  Faull  vs. 

Pac.  Rep.  678;  Brown  vs.  Ashley,  Cooke,  19  Ore.  455;  26  Pac.  664. 

16  Nev.   311;  Gould  vs.   Stafford,  5AltaLand  &  W.  Co.  vs.  Han- 

77  Cal.  66;  18  Pac.  Rep.  879.  cock,  85   Cal.   219;   24   Pac.   Rep. 

645- 


§287,288]         RIGIIT:^    IN     Till-     AUID    KECION.  463 

natural  incident  to  his  ownership  thereof;  while  on  the  other 
hand,  any  rights  that  may  be  acquired  in  any  artificial  ditch 
or  canal,  either  as  to  the  flow  of  the  water  or  any  use  of  the 
same,  must  depend  upon  some  grant  or  arrangement,  either 
proved  or  presumed,  from  or  with  the  owner  of  the  ditch  rela- 
tive to  the  waters  diverted  therein,  or  upon  some  other  legal 
origin. 1  However,  the  authorities  hold  that  a  water  course, 
though  artificial,  may  have  originated  under  such  circum- 
stances as  to  give  rise  to  all  the  rights  that  riparian  proprie- 
tors have  in  a  natural  and  permanent  stream,  or  have  been  so 
long  used  as  to  become  a  natural  water  course  prescriptively.- 

§  288.  Riparian  Owners  Estopped,  When  J— Where  a 
riparian  proprietor  has  been  guilty  of  misrepresentation  or 
some  degree  of  moral  turpitude,  and  has  also  stood  by  and 
permitted  a  person  to  appropriate  the  waters  of  a  stream  by 
means  of  a  dam,  canal  or  ditch,  at  great  expense,  he  may  be 
estopped  from  denying  his  right  to  the  water  as  such  riparian 
proprietor.'^  But  usually  something  more  than  mere  silence  is 
required  to  create  such  an  estoppel,  and  a  riparian  owner  who 
sees  a  person  preparing  to  appropriate  the  waters  of  a  stream, 
and  constructing  his  ditch,  canal  and  other  works,  for  the  di- 

1  Green  vs.  Carotta,  72  Cal.  267:  Gihiior,  12  Moo.   P.  C.    131;  1-ree- 

Wood   vs.    Waud,    3    Exch.    777;  man  vs.  Weeks,  45  Mich.  335- 

Greatrex  vs.  Haward,  8Exch.  293;  Where  a  party   having  made  a 

Magorvs.  Chadwick,  ii  Ad.  &  Kl.  ditch  six  feet   wide   through    his 

571;   Fox   River    Flower   Co.    vs.  land   conveyed  a  part  of  such  land 

Kelly,  70  Wis.  287;  Niekl  vs.  Lon-  bounding    on      the      ditch      the 

donR.  R.  Co.,  L.  R.  loEx.  4-  grant    was    held      to    extend 

2Sutcliffevs.Booth,32L.J.Q.H.  to     the     center     of     the    ditch, 

136;  Iviniey  vs.  Stacker,  L.  R.  I.  Warner  vs.  Southworth,  6  Conn. 

Ch.  396,  409;  Nutall  vs.  Bracewell,  470. 

L     R.    2    Exch.     i;    Merchy    vs.  3  See   upon  subject  of  estoppel. 

Gates  78  Maine,  300;  Siebert  vs.  ante   sections   260-263    and    cases 

Levan,  8  Rcnn.  St.  383;  Reading  cited.     Biddle    Boggs  vs.    Merced 

vs     Althouse,   93    Penn.    St.   4«';  M.   Co.,   14  Cal.   279;  Concord  vs 

Roberts  vs.  Richards,  44  L-  T.  N.  Nort..n,  .6  Fed.  Rep.  477;  Drcxel 

S    271;    Adams  vs.   Manning.   4H  vs.    Berney,     16    Fed.    Rep.    522; 

Conn.   477;  51  Conn.  5;  Tcter  vs.  Alexander  vs.  Woo.lfonl  etc.  Co., 

Caswell   38  Ohio  St.  ^iH;  Miner  vs.       9"  K)'-  '""^   J'""''   <^^'"'''   ^'"'-  "^"• 

vs.  Blake,  24  Fed.  Rej).  2.}y. 


464  RIGHTS    IN    THE    ARID    REGION.  [§  288 

version  of  the  water  of  the  stream,  has  been  held  not  to  lose 
his  rights  by  not  objecting. ^  An  upper  riparian  proprietor 
who  enters  into  an  agreement  with  a  lower  proprietor  whereby 
the  latter  grants  for  a  certain  term  the  right  to  the  use  of  the 
water  of  the  adjoining  stream  for  domestic  purposes  and  irri- 
gation is  held  by  the  Supreme  Court  of  California,  upon  the 
expiration  of  the  agreement,  to  be  not  thereby  estopped  from 
asserting  his  rights  as  a  riparian  proprietor  to  the  use  of  the 
waters  of  such  stream. ^  Further,  no  estoppel  can  arise  from 
the  neglect  of  a  riparian  proprietor  to  object  to  the  use  of  the 
water  of  a  stream  by  another  proprietor,  during  such  time  as 
there  is  an  abundant  supply  for  the  use  of  all.^  But  as  to 
whether  a  riparian  proprietor  will  be  estopped  from  setting  up 
his  claim  to  the  waters  will  depend  upon  the  circumstances  of 
each  particular  case.  In  the  opinion  upon  rehearing  in  the 
case  of  Curtis  vs.  La  Grand  Hydraulic  W.  Co.,^  the  Supreme 
Court  of  Oregon  held  that  under  the  circumstances  of  the  par- 
ticular case  the  plaintiff  should  not  be  permitted  to  set  up  her 
riparian  interest  so  as  to  defeat  the  defendant's  right  to  a  cer- 
tain portion  of  the  water  of  Mill  Creek,  where  the  diversion 
was  made  under  claim  of  title  and  the  defendant  believed, 
and  had  reason  to  believe,  that  the  claim  was  well  founded; 
and  where  the  plaintiff  stood  by,  without  asserting  or  making 

1  Lux  vs.  Haggin,  69  Cal.  255;  Cowles,  24  Ala.  446;  Cronin  vs. 
New  York  Rubber  Co.  vs.  Roth-  Gore,  38  Mich.  385;  Morris  vs. 
er}',  107  N.  Y.,  310;  P'lat  River  Moore,  11  Humph.  433;  Lawrence 
etc.  Co.  vs.  Kelly,  70  Wis.  287;  vs.  Brown,  5  N.  Y.  394;  Parker  vs. 
Huddleson  vs.  West  Belle  View,  Baker,  2  Met.  423;  Owen  vs.  Bar- 
III  Penn.  St.  110.  tholomew,  9  Pick.  920;  Dorlarque 

2  Swift  vs.  Goodrich,  70  Cal.  103.  vs.  Cress,  71  111.  480;  Alexander  vs. 

3  Anaheim  W.  Co.  vs.  Semi-  Kerr,  2  Rawle,  83;  Crest  vs.  Jack, 
Tropic  W.  Co.,  64  Cal.  185.  Upon  3  Watts,  238;  Taylor  vs.  Ely,  25 
the  general  doctrine  in  pais  see  Conn.  250;  Woodward  vs.  Wilcox, 
Kimmler  vs.  San  Luis  W.  Co.,  27  Ind.  207;  Brewstervs.  Strieker, 
221;  La  Joy  vs.  Primni,  3  Mo.  529;  2  N.  Y.  19;  Danforth  vs.  Adams, 
McComb  vs.  Gilkey,  29  Miss.  146;  29  Conn.  107;  Mayo  vs.  Cartwright, 
Dutchess     of     Kinston     Case,    2  30  Ark.  407. 

Smith   L.    C.    675;    Osborne  vs.  •!  20   Oregon,    47;    25   Pac.    Rep. 

Endicott,    6    Cal.     194;    Rich  vs.  378,  modifying  20  Oregon,  34;  23 

Atwater,   16  Conn.   418;  Brace  vs.  Pac.  Rep.  808. 

Yale,    4    Allen,    393;     Ware  vs. 


§288-290]       RianTs  in  the  arid  region.  465 

known  her  claim,  while  the  defendant  was  expending  large 
sums  of  money  and  making  extensive  improvements  under 
an  honest  and  reasonable  belief  that  it  had  the  right  to  make 
such  diversion,  and  without  which  its  expenditures  would 
prove  a  total  loss. 

II.    llis^lits   AtMiuirtMl    Under   Mt'xicun   and  Spanish   Laws. 

§  '2H\).  Mexican  Laws.— In  UeneraL— It  is  not  the  purpose 
of  this  work  to  enter  into  an  extended  discussion  of  the 
Mexican  laws  upon  the  subject  of  rights  that  might  be  ac- 
quired under  them  in  and  to  the  waters  of  rivers  and  streams; 
and  not  at  all  except  as  to  those  present  existing  rights 
in  water  in  the  arid  region  of  the  United  States  which  were 
originally'  acquired  under  the  laws  of  Mexico.  It  is  a  well 
known  fact  that  before  Mexico,  by  the  treaty  of  Guada- 
loupe  Hidalgo  in  1848,  ceded  that  part  of  the  territory 
which  comprises  a  large  portion  of  our  arid  west,  that 
country  had  made  to  private  individuals  grants  of  large  tracts 
of  land  which  were  included  within  the  boundaries  of  the 
territory  ceded  to  the  United  States.  These  private  individ- 
uals having  acquired  the  soil  by  the  Mexican  grants  of  course 
also  acquired  certain  rights  and  incidents  in  and  to  the  cor- 
poreal hereditaments  to  the  soil.  Hence  the  questions  natur- 
ally arise,  what  were  the  nature  and  extent  of  the  rights 
originally  acquired  under  the  Mexican  laws  in  and  to  the  wa- 
ters of  the  natural  rivers,  streams  and  lakes  by  those  persons 
who  obtained  their  title  to  the  land  by  a  grant  from  the  Mexi- 
can Government,  and  how  do  the  laws  of  the  United  States 
affect  those  rights  thus  acquired  ?  We  will  now  proceed  to 
examine  the  authorities  as  to  what  were  the  original  rights 
acquired  in  and  to  the  waters  of  the  streams  which  (]o\\'  over 
or  adjoin  these  lands. 

§290.  lli;;hts  Ac(juiiT(l  in  Waters  rndcr  .Mexican  Laws.— 

By  the  Mexican  law,  which  follows  the  civil  law,  we  find  that 
the  property  in  rivers  pertained  to  the  nation,  but  the  use  of 
the  waters  to  the  inhabitants;  and  the  conunon  use  of  the 
waters  by  the  public,  it  would  seem,  existed  only  while  they 
continued  to  flow  in  their  natural  channel  and  constituted  a 


466  RIGHTS   IN    THE   ARID    REGION.         [§290,291 

part  of  the  rivers.  But  we  also  find  that  under  the  Mexi- 
can law  an  exclusive  use  of  parts  or  the  whole  of  the  waters 
of  a  river  or  stream  might  under  certain  circumstances  be 
legally  acquired  by  individuals  for  their  own  private  use. 
"  The  common  right  to  the  use  of  running  water  in  its  natural 
channel  applies  onl}^  to  those  cases  where  the  quantity  of 
water  is  so  great  that  its  entire  exclusive  appropriation  is  not 
necessary,  having  a  regard  to  the  general  objects  of  the  insti- 
tution of  property."^ 

"Thus,"  says  Bowyer,  "running  water  is  capable  indeed 
of  a  qualified  appropriation  orproperty,  but  subject  to  a  com- 
mon right  by  common  law,  where  it  is  capable  of  being  fully 
enjoyed  without  exclusive  possession."^ 

Also,  we  find  that  the  Mexican  Government  prohibited  any 
diversion  or  obstruction  of  the  waters  of  a  river  by  riparian 
proprietors  or  others  which  would  interfere  with  its  common 
use  for  navigation.  But  the  interference  with  the  common 
use  of  non-navigable  rivers  by  private  individuals  was  by  no 
means  prohibited  under  the  Mexican  law  governing  the 
waters  of  those  streams;  and  the  common  use  of  such  waters 
by  all  who  could  legally  gain  access  to  them  continued  only 
while  the  waters  flowed  in  their  natural  channel.  The  Mexi- 
can Government  permitted  the  diversion  of  waters  from  rivers 
and  streams  not  navigable,  and  by  those  who  were  not  known 
under  the  common  law  as  riparian  owners;  this  was  permitted 
upon  such  terms  and  conditions  and  with  such  limitations  as 
were  established  by  law  or  by  usages  and  customs  which  had 
the  force  of  law. 

The  rights  of  riparian  proprietors  under  the  Mexican  law 
were  recognized  to  be  similar  for  the  most  part  to  the  rights 
of  riparian  proprietors  as  recognized  under  the  common  law.^ 

§  291.  Same.— Aiithori  ties  Discussed.— Mr.  Justice  Mc- 
Kinstry,  in  the  case  of  LrUx  vs.  Haggin,  supra,  in  speaking 

iGrotius,    Droit  de   la   Guerre;  SBowyer's  IModern  Civil  Law,  p. 

Puffendorf,    Droit  de   la   troture;  62. 

Bovvyer's   Modern  Civil   Law,    p.  ^  Lux  vs.  Plaggin,  69  Cal.  255;  10 

61.  Pac.  Rep.  674. 


§291]  RIGHTS    IN    THE   ARID    REGION. 


467 


of  the  laws  of  Maxico  relative  to  rights  in  water,  said: 
"Conceding  the  provisions  of  the  Civil  Codes  of  1870  and 
1884  to  be  declaratory  of  the  law  as  it  existed  when  Cali- 
fornia was  ceded  to  the  United  States,  they  do  not  confer  or 
recognize  any  inherent  vested  right,  enforceable  in  the  Courts, 
in  others  than  riparian  proprietors  to  the  use  of  any  portion 
of  the  waters  of  a  stream,  nor  any  right  except  as  to  those 
who  actually  appropriate  waters  in  the  manner  and  in  the 
condition  prescribed  by  the  laws.  It  may  be  that  the  Mexican 
system  implies  a  recognition  of  an  imperfect  obligation  or 
moral  duty  on  the  part  of  the  Government  to  provide  for  the 
distribution  of  waters  in  such  a  manner  as  to  encourage  the 
settlement  of  the  country,  develop  manufactures  and  benefit 
agriculture.  In  this  view  it  would  seem  that  the  laws  were 
inspired  with  a  liberal  spirit,  and  were  well  calculated  to  ad- 
vance those  objects. 

"  By  the  codes  the  owner  of  an  estate  in  which  there  is  a 
natural  spring  may  use  or  dispose  of  its  waters,  subject  only 
to    condenmation  for    public   use    on    compensation    to    the 
owner.     *     *     *     By  article  1066  of  the  same  code  the  prop- 
erty  of  the  State  does  not  prejudice  the  rights  over  water  ac- 
quired  by  individuals  or   corporations,  '  by  legitimate  title, 
according  to  what  is  established  by  the  special  laws.'     That 
article  declares  that  the  exercise  of  private  property  in  waters 
is  subject  to  what  is  provided  in  articles  1067,  io58  and  1069. 
The  two  first  prohibit  any  diversion  which   shall  interfere 
with   navigation.     Article    1069    declares:     'The    owner    of 
water,  whatever  may  be  his  title,  cannot  impede  the  use  that 
may  be  necessary  for  Ihc  persons  or  cattle  of  a  possession  or 
rural    estate,    nor   oppose   the   construction  of  indispensable 
works  to  satisfy  this  necessity  in  the   manner  least  injurious 
to  the  owner,  but  he  shall   have  a  right  to   indenniification, 
save  that  the  inhabitants  shall  have  acquired  the  use  of  the 
water  by  prescription  or  other  legal  title.'     *     *     *     Article 
1073  of  the  code  of  1870  is:     '  Every  one  who  wishes  to  use 
the  waters  of  which  he  can  dispose  has  a  right  to  cause  it  to 
pass  through    intermediate  grounds,  with  the  obligation  of 
indemnifying  their  owners  as  well  also  as  those  who  own  the 
lower  land  on  or  tlirough   which  the  waters   may    filter  or 


468  RIGHTS    IN    THE    ARID    REGION.         [§  291,  292 

fall.'     We  understand  the  last  class  to  be  those  whose  lands 
are  injured  by  the  water  after  it  has  been  diverted." 

From  the  above  there  can  be  no  doubt  but  that  the  laws  of 
Mexico  governing  the  diversion  of  the  waters  of  streams  and 
lakes  were  similar  to  those  governing  the  same  in  the  arid 
region.  And  the  Court  in  the  case  above  cited  held  that: 
"By  the  law  of  Mexico  the  running  waters  of  California 
were  not  dedicated  to  the  common  use  of  all  the  inhabitants 
in  such  a  sense  that  they  could  not  be  deprived  of  the  com- 
mon use." 

§  292.  Legal  Effect  of  Laws  of  United  States  Upou  Mex- 
ican Grantees'  Rights. — From  the  previous  sections  it  is  evi- 
dent that  the  laws  governing  private  rights  in  waters  differed 
very  little  under  Mexican  rules  at  the  time  when  the  South- 
west was  ceded  to  the  United  States  from  those  in  force  in 
California  at  the  present  time.  The  law  of  appropriation  for 
beneficial  purposes  was  known  and  recognized  as  authority, 
and  the  same  is  also  true  respecting  the  law  of  riparian 
rights.  There  were  in  Mexico  prior  to  the  cession  of  Cali- 
fornia the  two  systems  separate  and  distinct  that  we  find  now 
under  the  law  of  that  State.  The  Mexican  law  as  it  existed 
at  the  time  of  the  cession  of  California  recognized  an  inherent 
and  vested  right  in  riparian  owners  to  the  use  of  the  waters 
of  a  stream;  and  also  recognized  a  vested  right  in  those  who 
had  actually  appropriated  the  waters  in  the  manner  and  under 
the  conditions  prescribed  by  the  laws  of  that  country.  When 
the  territory  of  the  Southwest  was  transferred  to  the  United 
States  by  the  treaty  of  Guadaloupe  Hidalgo  in  1848,  and 
became  subject  to  the  laws  of  this  government,  and  finally  to 
the  laws  of  the  respective  States  and  Territories  organized 
out  of  the  same,  the  existing  laws  regarding  private  interests 
in  and  to  the  waters  of  streams  and  lakes  were  not  found  to 
be  materially  in  conflict  with  the  laws  of  the  United  States, 
or  those  finally  adopted  by  the  several  States  and  Territories. 
So,  in  the  change  from  the  Mexican  laws  to  those  of  the 
United  States  few  obstacles  were  thrown  in  the  way  as 
regards  water  and  other  property  rights  of  persons  who  were 
grantees  of  the  Mexican  Government  to  certain  lands  included 


§292,293J         RIGHTS    IN    THE    ARID    UEGION.  469 

within  this  tract,  prior  to  the  time  of  the  treaty,  and  who 
claimed  rights  in  the  waters  of  flowing  streams  by  virtue  of 
their  riparian  ownership.  Also  those  persons  are  protected  who 
were  actuallj'  at  the  time  of  the  treat\-  appropriating  the  water 
to  some  beneficial  use  or  purpose  by  diverting. 

It  is  not  our  purpose  to  discuss  the  question  as  to  what 
result  might  have  followed  had  the  laws  of  Mexico  respect- 
ing water  rights  at  the  time  of  the  treaty  been  radically  dif- 
ferent from  those  in  force  in  the  United  States.  However, 
we  will  say  that  if  under  the  Mexican  laws  vested  rights  in 
the  use  or  ownership  of  water  or  other  property  rights  of  such 
a  nature  as  to  have  been  inconsistent  with  the  property  laws 
of  the  United  States  or/.of  the  several  States  had  grown  up 
it  is  obvious  that  under  the  law  of  Nations  and  the  terms  of 
tue  treaty  by  which  this  territory  w^as  transferred,  respecting 
vested  rights,  the  several  States  under  whose  respective  juris- 
dictions these  water  and  other  property  rights  came  would 
have  had  no  power  to  destroy  them  without  just  compensation. 
The  stipulations  in  the  treaty  were  that  actual  bona  fide  gran- 
tees of  the  Mexican  Government  shall  continue  to  be  owners 
of  their  respective  tracts,  although  the  territory  had  passed 
into  the  domain  of  the  United  States;  and  that  the  vested 
rights  in  property  should  be  respected  by  the  United  States 
Government.' 

III.  Nature  and  Extent  of  Uii;li(s  in  Waters  Acquireil 
by  Prescript icMi. 
§29.'i.  Prescription  in  Arid  West. — We  have  seen  in 
the  previous  sections  that  the  theory  of  riparian  rights,  based 
upon  the  common  law  principles  of  that  subject  in  the  arid 
west,  has  been  greatly  modified  from  the  old  common  law 
rule  by  statutory  enactments  and  decisions  of  the  Courts  so  as 
to  be  more  in  harmony  with  the  great  necessities  of  that  sec- 
tion. The  same  can  also  be  said  ujion  the  subject  of  the  right 
of  acquiring  title  to  waters  by  prescription.     Under  the  com- 

iLux  vs.  Haf(gin,69  Cal.  255;   10  9  vSawycr,  441,  18  l-od.   Rep.  801; 

Pac.  Rep.  674;  Poineroyon  Ripar-  I.os  .\iiKeles  vs.   Hal(luiii.53  Cal. 

ian  Rij^hts,  Section  42,  1 14;  Wootl-  471 ;  Pope  vs.  Kiniimn,  .S4  C;il.  .v 
ruff  vs.  North  Bloonificld,  etc.,  Co. 


470  RIGHTS   IN    THE    ARID    REGION.         [§  293,  294 

mon  law  it  has  been  modified  to  meet  the  needs  of  the  western 
country.     The  principal  modification  is,   that  the  period  of 
time  daring  which  the  adverse  possession  must  run  in  order 
to  acquire  a  title  by  this  means  has  been  reduced  by  statutory 
enactments   from  the  common  law  rule  of  twenty  years  to  a 
period  corresponding  to  the  time  fixed  by  the  statutes  of  lim- 
itations of  the  various  States  and  Territories  of  the  West,  as 
a  bar  to  the  entry  upon  land.     When  adverse  possession  has 
continued  uninterruptedly  for  the  required  statutory    period 
it  works  an  abandonment  to  the  extent  of  the  possession.^ 
And  in  general  it  can  be  said  that  a  right  to  the  use  of  waters 
may  be  acquired  in  the  western  States  as  against  one   who 
formerly  claimed  the  water  by  virtue, of  a  prior  appropriation, 
riparian  rights  or  prescription  itself,  or  as  against  one  who 
claimed  by  any  other  right  acquired  in  waters  by  an  exclusive, 
uninterrupted,  open,   notorious  and  peaceable  enjoyment  of 
the  water  in  a  particular  way,  and  under  a  claim  or  color  of 
right,  for  a  period  corresponding  to  the  time  fixed  by  statute 
of  limitations  as  a  bar  to  an  entry  on  land.^    Not  only  a  right 
to  use  the  water  of  a  stream,  but  also  a  right  to  pollute  the 
waters  of  a  stream,  may  be  acquired  by  prescription,'^  but  it  is 
limited  by  the  character  and  extent  of  that  exercised   during 
the  entire  period  of  prescription;    and  an  action  for  damages 
will  lie  for  any  increased  fouling  causing  material  injury.'* 

§294.  Prescriptiou   as   Against   an  Appropriator.— The 

rights  in  and  to  the  waters  of  a  stream  acquired  by  an  appro- 
priation of  the  same  may  be  held,  granted,  abandoned  or  lost. 

iSee  Abandonment  by  Adverse  vs.  Hill,  93  Cal.  407;  28  Pac.  Rep. 

Possession,  ante  Section,  256   and  1066;   Sparger  vs.  Heard  R.  &  F. 

authorities  cited.  Co.,  76  Cal.  11;  17  Pac.   Rep.  933; 

2  Ball  vs.  Kehl.  95  Cal.  606;  30  Last  Chance  Water  Ditch  vs.  Heil- 

Pac.  Rep.  780;  Crandallvs.  Woods,  bron,  86  Cal.  i;  26  Pac.  Rep.  523; 

8  Cal.  136;    Huston  vs.  Bybee,   i7  Drew  vs.  Hicks,  35  Pac.  Rep.  565; 

Ore.  140;    20  Pac.  Rep,  51;  Union  Gallagher  vs.  Montecito,  etc.,  Co., 

Water  Co.  vs.  Crary,  25  Cal.  504;  35  Pac.  Rep.  770. 

Faull  vs.    Cooke,   19  Ore.  455;  26  3 Masonic  Temple  Ass.  vs.  Har- 

Pac.  Rep.  662;   American  Co.  vs.  ris,4New  Eng.  407;  9  All.  Rep.  737. 

Bradford,  27  Cal.  360;  Los  Angeles  4  Mississippi  Mills  Co.  vs.  Smith 

vs.  Baldwin,  53  Cal.  463;    Chauvet  (Miss.);  11  So.  Rep.  26. 


§294] 


RIGHTS    IN    THE    ARID    REQION. 


471 


The  right  of  the  first  appropriator  m.iy  be  lost  in  whole  or  in 
some  limited  portions  by  the  adverse  possession  of  another. 
And  when  such  a  parson  has  had  the  continued,  notorious, 
uninterrupted  and  adverse  eiijoymant  of  the  waters  or  of  a 
certain  portion  of  them  during  the  period  prescribed  by  the 
statute  of  limitations  for  entry  upon  lands  the  lawwill  presume 
a  grant  of  the  right  so  held  and  enjoyed  by  liini.^  Statutory 
appropriation  is  not  necessary  to  prescription,  but  gives  to  one 
seeking  to  acquire  a  prescriptive  right  to  divert  water  the 
advantage  of  notice  to  prior  claimants  th.it  his  user  is  adverse, 
so  as  to  set  the  statute  of  limitations  in  motion.-  The  right 
acquired  by  prescription  is  measured  by  the  right  enjoyed. 
It  is  always  confined  to  the  right  as  exercised  for  the  full 
period  of  time  prescribed  by  the  statute.  Hence  it  follows 
that  a  prescriptive  right  to,  raise  the  water  in  a  stream  to  a 
certain  stage  is  no  defense  to  an  action  for  damages  resulting 
from  an  overflow  caused  by  raising  the  waters  above  such 
stage.^  In  order  to  establish  a  right  by  prescription  or  ad- 
verse use  the  acts  by  which  such  right  is  sought  to  be  estab- 


1  Union  Water  Co.  vs.  Crary,  25 
Cal.  405;  American  Co.  vs.  Brad- 
ford, 27  Cal.  361;  Smith  vs.  Logan, 
18  Nev.  149;  Evans  vs.  Ross  (Cal.) 
8  Pac.  Rep.  88;  Dodge  vs.  Harden, 
7  Ore.  456;  Dorr  vs.  Hammond,  7 
Colo.  79;  I  Pac.  Rep.  693;  Siebert 
vs.  Frink,  7  Colo.  148;  2  Pac.  Rep. 
901;  Cave  vs.  Crafts,  53  Cal.  135; 
Cox  vs.  Clough,  70  Cal.  345;  Bealy 
vs.  Shaw,  6  East.  208;  ISalslon  vs. 
Bensted,  i  Camp.  463;  Ricard  vs. 
Williams,  7  Wheat.  59;  Williams 
vs.  Nelson,  23  Pick.  141;  Colvin  vs. 
Burnett,  17  Wend.  564;  Hammond 
vs.  Zehner,  23  Barb.  473;  3  Kent's 
Com.  441-446;  Shaw  vs.  Crawford, 
10  Johns.  236;  Johns  vs.  Stevens, 
3  Vt.  316. 

2  Alta  Land  &.  Water  Co.  vs.  Han- 
cock, 85  Cal.  219. 

3  Tucker    vs.    Salem      I'louring 


Mills  Co.,  13  Ore.  28;  Boynton  vs. 
Longley,  19  Nev.  69.  Prescriptive 
rights  limited  by  user,  Bealy  vs. 
Shaw,  6  East.  208;  Brown  vs.  Best, 
I  Wils.  174;  Strut  vs.  Bovington,  5 
Esp.  56:  Crossley  vs.  Lightowler, 
L.  R.  2  Ch.  478;  L.  R.  3  Eq.  279; 
Blackburn  vs.  vSomers,  5  L.  R.  ir. 
I ;  Carlisle  vs.  Cooper,  21  N.J.  Ivq. 
594;  19  Id.  256;  17  Id.  525;  Middle- 
sex Co.  vs.  Lowell,  149  Mass.  509; 
Norway  PlainsCo.  vs.  Bradley  Co., 
52  N.  H.  86,  103;  Russell  vs.  Scott, 

9  Cowan,  279;  Wilklow  vs.  Lane, 
37  Barb.  244;  Baldwin  vs.  Calkins, 

10  Wend.  167;  Peterson  vs.  McCul- 
lough,  50  Ind.  35;  Mitchell  vs. 
Parks,  26  Ind.  354;  Pientice  vs. 
(ieigcr,  9  Hun.  350;  74  N.  Y.  341; 
Cotton  vs.  P<jaasset  Mfg.  Co.,  13 
Met.  429;  vStein  vs.  Bnr<kn,  24  Ala. 
130. 


472  RIGHTS    IN    THE    ARID    REGION.         [§294,295 

lished  must  operate  as  an  invasion  of  the  rights  of  the  party 
against  whom  it  is  set  up.  The  enjoyment  relied  upon  must 
be  of  such  a  character  as  to  afford  ground  for  an  action  by 
the  other  party. ^ 

§  295.  Prescription  as  Against  Riparian  Owners. — Al- 
though riparian  rights  are  not  lost  by  simply  non-user^  the 
rights  of  riparian  proprietors  are  an  appurtenance  to  the  land 
running  with  it  as  a  corporeal  hereditament  and  cannot  be  ex- 
tinguished or  defeated  by  an  appropriation,  but  may  be  ex- 
tinguished by  the  acquirement  of  a  prescriptive  right  to  divert 
the  stream  by  actual  and  uninterrupted  usage,  with  or  with- 
out the  statutory  appropriation,  if  adverse,  for  a  useful  pur- 
pose, under  claim  of  right  and  continued  for  the  period 
prescribed  by  the  statute  of  limitation. ^  The  rules  of  law 
governing  the  acquisition  of  right  by  prescription  in  this  case 
are  similar  to  those  governing  rights  acquired  in  the  same 
manner  as  against  the  prior  appropriator.  The  riparian  pro- 
prietor against  whom  adverse  possession  is  held  must  have  had 
knowledge  or  means  of  knowledge  of  such  occupation  and 
claim  of  right.'*    The  appropriator  must  have  proof  of  posses- 

1  Union  M.  &  M.  Co.  vs.  Ferris,  Boyntou  vs.  Longley,  19  Nev.  69. 
2  Sawyer,  176;  Grisby  vs.  Clear  4  Thompson  vs.  Felton,  54  Cal. 
Lake  Water  Co.,  40  Cal.  396;  Ana-  547;  Unger  vs.  Mooney,  63  Cal. 
heim  Water  Co.  vs.  Semi-Tropic  586:49  Am.  Rep.  100;  Union  M.  & 
Water  Co.,  64  Cal.  185;  Dick  vs.  M.  Co.  vs.  Ferris,  2  Saw.  176;  the 
Bird.  14  Nev.  161;  Dick  vs.  Cald-  Mining  Debris  Case,  9  Saw.  441; 
well,  14  Nev.  167;  Boynton  vs.  American  Co.  vs.  Bradford,  27  Cal. 
Clear  Lake  Water  Co.,  40  Cal.  396;  360;  Alta  L.  &  W.  Co.  vs.  Han- 
Union  M.  &  M.  Co.  vs.  Dangberg,  cock,  85  Cal.  219. 

2   Saw.   450;    the   Mining    Debris  Incursions  of  an  appropriator  of 

Case,  9  Saw.  441;  Cave  vs.  Crafts,  waters  of  a  river  upon  another's 

53  Cal.  135;  Ledu  vs.  Jim  Yet  Wa,  land  to  obstruct  the  flow   in  the 

67  Cal.  346;  Winter  vs.  Winter,  8  latter's   ditch   never   assented  to, 

Nev.  129.  but  undone  as  often  as  discovered 

2  Whitney  vs.  Wheeler,  121  Mass.  by  the  latter,  do  not  secure  any 
396.  prescriptive  right  in  the  water  se- 

'■^  See  ante  Section   256,  and  au-  cured  thereby,  however  long  con- 

thorities  cited;  Alta  L.  &W.  Co.  vs.  tinned    or     frequently    repeated. 

Hancock,  85  Cal.  219;  Crandall  vs.  Last  Chance  Water  Ditch  Co.  vs. 

Woods,   8  Cal.    136;    Pomeroy  on  Heilbron,  86  Cal.  i;   26  Pac.  Rep. 

Riparian     Rights,      Section     137;  523. 


§295]  RIGHTS    IN    THE    ARID    R  KG  ION.  473 

sion  for  the  statutory  period  with  proof  of  an  adverse  claim 
against  the  proprietor,  as  without  proof  of  adverse  claim  his 
plea  will  not  avail. ^  If  any  taxes  have  been  assessed  against 
the  water-right  in  order  to  sustain  a  plea  of  the  statute  pay- 
ment by  the  appropriator  must  be  shown.-  And  in  order  to 
establish  a  right  by  prescription  the  acts  by  which  it  sought 
to  establish  it  must  operate  as  an  invasion  of  the  right  of  the 
party  against  whom  it  is  set  up,  and  the  enjoyment  relied 
upon  must  aflford  ground  for  an  action  by  the  proprietor 
against  whom  the  right  is  sought.-^  If  il  is  doubtful  whether 
the  use  was  adverse,  known  to  the  owner  and  interrupted,  the 
claim  of  prescription  cannot  avail."* 

By  this  means  any  private  riparian  proprietor  upon  a 
stream  may  obtain  against  all  other  riparian  proprietors  upon 
the  same  stream  special  rights  to  use  the  water  for  other  and 
greater  than  those  which  the  law  confers  upon  him,  simply  as 
such  riparian  proprietor.  And  an  appropriator  of  the  waters 
of  a  certain  stream  may  obtain  by  grant  from  the  riparian 
proprietors  upon  the  stream  or  by  prescription  against 
them  the  exclusive  right  to  any  portion  of  the  waters  of  the 
stream  for  the  purpose  of  irrigation  or  for  any  other  beneficial 
use;  and  if  by  prescription,  by  remaining  in  peaceable, 
notorious  and  adverse  possession  for  the  period  required  by 
the  statute  as  against  the  rights  of  all  riparian  proprietors, 
the  appropriator's  claim  will  ripen  into  a  lawful  right,  even  to 
the  extent  of  consuming  the  entire  water  of  the  stream.'' 


1  Greer  vs.  Tripp,  56  Cal.  209;  Anaheim  Water  Cu.  vs.  Senii- 
Osborne  vs.  Clark,  60  Cal.  622;  Tropic  Water  Co.,  64  Cal.  1S5; 
Sheils  vs.  Haley,  61  Cal.  167;  Cox  hakesidc  Ditch  Co.  vs.  Crane,  80 
vs.  Clough,  70  Cal.  345;  Harris  vs.  Cal.  iSi;  Union  M.  &  M.  Co.  vs. 
Merritt,  63  Cal.  119;  Union  Water  Ferris,  2  Saw.  176;  Grishy  vs. 
Co.  vs.  Crary,  25  Cal.  504;  Anieri-  Clear  Lake  W.  Co.,  40  Cal.  396; 
can  Co.  vs.  Bradford,  27  Cal.  360  Dick  vs.  Rird,   14   Nev.   161;   Dick 

2  Ross   vs.    Evans,  65   Cal.   440;  v.s.  Caldwell,  14  Nev.  167. 
McNoble   vs    Justiniano,   70   Cal.  »  American  Co.   vs.  Bradford.   27 
395;  Heilhron  vs.  Last  Chance  W.  Cal.  361. 

Co.,  75  Cal.   117;  Lux   vs.  Ha^Kin,  8  An  adverse,  exclusive  ami  unin- 

69  Cal.  390,  451;  St.  Helena  W.  Co.  terrupteil   use  and  enjoyiiunt  by 

vs.  Forbes,  62  Cal.  1S2.  one     person,      and    those     under 

3 Cox   vs.    Clough,    70   Cal.    345;  whom  he  claims  of  all  the  water 


474  RIGHTS    IN    THE    ARID    REGION.      ,  [§  296 

§  290.  Same — Authorities  Bisciisseil. — Upon  this  import- 
ant subject  the  Supreme  Court  of  California  in  a  recent  case, 
The  Alta  lyaud  &  Water  Co.  vs.  Hancock,^  said:  "  Nor  is 
it  necessary  in  this  case  to  discuss  the  character  or  extent  of 
the  right  of  Hancock,  or  his  grantees,  to  the  use  of  the  waters 
of  the  creek  by  virtue  of  his  riparian  proprietorship.  That 
they  had  some  right  in  the  flow  and  to  the  use  of  said  waters, 
as  such  riparian  proprietors,  is  conceded  on  both  sides.  To 
the  extent  that  it  existed  it  was  an  appurtenance  to  the  land, 
running  with  it  as  a  corporeal  hereditament.  It  was  one 
which  might  be  segregated  by  grant  or  by  condemnation,  or 
extinguished  by  prescription,  but  could  not  be  defeated  by 
simple  appropriation.  The  term  'appropriation,'  as  applied  to 
the  acquirement  of  the  right  to  the  use  of  water,  has  in  this 
State  a  statutory  technical  meaning,  and  the  simple  act  of  ap- 
propriation under  the  statute  will  not  of  itself  defeat  or  ex- 
tinguish any  prior  right  Actual  and  uninterrupted  user, 
however,  with  or  without  the  statutory  appropriation,  if  ad- 
verse, for  a  useful  purpose,  and  under  a  claim  of  right,  con- 
tinued fur  the  period  prescribed  for  the  statute  of  limitation 
gives  a  prescriptive  right  which  will  extinguish  the  rights  of 
the  riparian  proprietor.  Statutory  appropriation,  therefore, 
is  not  necessary  to  prescription,  but  it  gives  to  one  who  seeks 
to  acquire  right  by  prescription  this  advantage,  that  it  gives 
to  prior  claimants  notice  that  his  use  is  adverse  and  under  a 
claim  of  right,  and  sets  the  statute  in   motion   against  such 

of  a   creek,   taken   therefrom   by  granted  by  the  owner  in  the  land 

means  of  a  ditch  and  conveyed  to  of  which  he  reserved  the  right  to 

certain  mining  grounds  for  niiu-  use  the  water  a  part  of   the  year 

ing  purposes  for  twelve  years,  or  for   his  own   purposes,    such    ad- 

for  any  period  beyond  that  for  the  verse   use  by   grantees   from  the 

statute   of   limitation  prescribing  original    appropriator  cannot    be 

the  time  in  which  entry  shall  be  established  unless  it  is  shown  that 

made  upon  real  property,  will  bar  the  use  of   the  water  by  them  has 

the   owner   of    the   land   through  been  in  hostility  to   the  use  of  it 

which   the   creek    runs   of  his  ri-  by  the  owner  of  the  land  under 

pariau  rights;  but  where  the  ditch  such     reservation.       Huston     vs. 

was   constructed,    by    means     of  Bybee,  17  Oreg,  140;   2   L.   R.  A. 

which   the   water   was    originally  568;  20  Pac.  Rep.  51. 

appropriated      under     a     license  1 85  Cal.  219;  24  Pac.  Rep.  645. 


§296]  RIGHTS    IN    TIIK    AIlll)    liliUION.  475 

prior  claimant.  *  *  *  'pjii^^  right  becomes  fixed  only  after 
five  years'  adverse  enjoyment.  And  to  have  been  adverse  it 
must  have  been  asserted  under  claim  of  title  with  the  know- 
ledge and  acquiescence  of  the  person  having  the  prior  right 
and  must  have  been  uninterrupted.  In  order  to  constitute  a 
right  by  prescription  there  must  have  been  such  an  invasion 
of  the  rights  of  the  party  against  whom  it  is  claimed  that  he 
would  have  had  ground  of  action  against  the  intruder.  To  be 
adverse  it  must  be  accompanied  by  all  the  elements  required 
to  make  out  an  adverse  possession;  the  possession  must  be  by 
actual  occupation,  open,  notorious,  and  not  clandestine;  it  must 
be  hostile  to  the  other's  title;  it  must  be  held  under  claim  of 
title,  exclusive  of  any  other  right,  as  one's  own;  it  must  be 
continuous  and  uninterrupted  for  the  period  of  five  years."' 
And  upon  the  subject  of  uninterrupted  use  necessary  in 
order  to  acquire  a  title  by  prescription  the  Court,  continuing, 
saj'S:  "  Nor  was  the  use  'uninterrupted'  for  the  period  of 
five  years.  The  Court  has  apparently  ex  indiistria  refrained 
from  the  use  of  that  word  in  the  findings.  And  yet  the  use 
must  be  not  only  adverse,  under  claim  of  right,  open  and  no- 
torious, but  it  must  be  'uninterrupted'  for  a  period  of  five 
years  to  ripen  into  a  right  by  prescription.  The  Court  has 
found  that  the  use  was  'continuously'  from  1S76  to  18S7,  but 
not  that  it  was  'uninterruptedly.'  Counsel  insists  that  the 
words  are  synonymous,  that  the  one  means  the  same  as  the 
other.  They  are  very  nearly,  but  not  in  the  law  exactly, 
synonymous.  This  case  furnishes  a  fair  illustration  of  the 
distinction  between  them.  Burton  and  Stones  used  this  ap- 
purtenant to  the  land  'continuously'  for  the  period  of  eleven 
years.  They  used  the  land  itself  and  this  appurtenant  to  it 
on  the  land  during  the  whole  of  the  same  period  'continuously.' 
The  use  of  the  land  was  unquestionably  adverse  to  the  claim 
and  right  of  Hancock,  and  yet  its  continuous  use  for  the  period 
of  eleven  years  did  not  give  to  those  using  it  a  right  to  the  land 
by  prescription,  though  the  rule  of  law  as   to   the   acquiring 

1  Citing   Crandall   v.s.    Woods,   8  27  Cal.  360;   Aiialicini    Witter  Co. 

Cal.    136";    Union    Water    Co.    vs.  vs.    Si-nii-Tropic    Watt-r    Co.,    (4 

Crary,   25  Cal.   504;  85    Am.   Dec.  Cal.  185;  Thomas  vs.   IjiKland.  ?! 

145;   American   Co.  vs.    Bradford,  Cal.  458. 


476  RIGHTS    IN    THE    ARID    REGION,  [§  296 

right  to  land  and  right  to  water  by  prescription  is  the  same. 
Then  why  did  it  not  give  the  right  ?  Because,  just  before  the 
expiration  of  the  five  years  the  use  was  '  interrupted  '  by  the 
bringing  of  the  action  in  ejectment,  and  this  interruption, 
though  it  did  not  break  the  continuity  of  use  until  final  judg- 
ment and  writ  of  possession,  six  years  afterwards,  stopped  the 
running  of  the  statute,  and  no  right  could  be  acquired  by  use 
after  that  during  the  pendancy  of  that  suit.  As  this  in  law 
so  interrupted  the  use  of  the  land  as  to  prevent  the  acquiring 
of  a  prescriptive  right  to  the  land  itself,  so  it  also,  and  by  the 
same  act,  so  interrupted  the  use  of  every  appurtenant  to  the 
land  which  was  being  used  on  it  as  to  prevent  the  acquiring  a 
prescriptive  right  to  that  appurtenant,  to  use  it  there  or  else- 
where. That  recovery  of  the  land  in  ejectment'  carried  with 
it  the  recovery  of  every  appurtenant  thereto," 

We  have  quoted  at  length  from  the  above  opinion  because 
it  would  be  difiicult  to  find  a  case  where  the  facts  involved 
would  require  the  application  of  so  many  of  the  principles 
necessary  to  sustain  a  plea  of  prescription.' 


1  The  users  of  the  water  in  the  ties  showed  that  the  intention  was 

case  of  a  plea  of  prescription  must  that    one-half    of   the   water  was 

show  that  their  use  of  it  was  in  leased,  and  that  such  half  was  to 

defiance   of   any   right   upon   the  be   arrived  at  by  the  use   of   the 

part  of  the  owners  to  use  it  for  whole   stream  for  half  the  time; 

any  purpose,  and  that  they  totally  that  such  use  of  the  whole  stream 

ignored  his  right  to  use  it  at  all,  was  under  the  lease,  and  not  ad- 

and  that   he   acquiesced  therein.  versely  to  the  lessor;  and  that  the 

Huston  vs.  Bybee,   17  Ore.  140;  2  lessee  could  not  base  a  claim  to 

L.  R.  A.  568;  20  Pac.  Rep.  51.     In  half  the  stream  upon  such  use." 

the  case  of  Aneto  vs.  Restano,   78  Boynton  vs.  Longley,  19  Nev.  69; 

Cal.  374,  where  a  lease  by  a  party  6  Pac.    Rep.    487.      See  also  Last 

was   of   "one   half   of   the   water  Chance  Ditch  Co.  vs.  Heilbron, 86 

flowing  in  his  ditch  every  alter-  Cal.  i;  26  Pac.  Rep.  523;  Heilbron 

nate    day    from     twelve     o'clock  vs.  Kings  R.,  etc.,  Co.,  76  Cal.  ir; 

noon   to   twelve   o'clock   noon  of  17  Pac.  Rep.  933. 

the   next   day,"    and   the   parties  Spragur  vs.  Heard,  90  Cal.  221; 

thereafter    each   used  the    whole  77  Pac.  Rep.  198,  where  the  Court 

stream  on  alternate  days,  the  Su-  held  that  findings  that  the  gran- 

preme  Court   of  California   held:  tor  of   the   plaintiff  appropriated 

"  That  the  circumstances  and  the  and  used  a  specified  amount  of  the 

practical  construction  of  the  par-  waters  of  a  stream  by  means  of  a 


$297] 


RIGHTS    IN    THE    ARID    KEtilON. 


477 


§  297.  Prescription    as   Ai,Miiisl    Anv     Oilier    Kidit.— It 

makes  no  diflference  as  to  how  the  right  to  water  was  origin- 
ally acquired,  or  in  what  capacity  it  was  originally  held. 
Rights  to  all  or  a  part  of  the  water  may  be  acquired  by 
prescription.  Hence  it  follows  that  a  right  acquired  by 
prescription  may  be  lost  by  prescription.'  It  is  also  important 
to  note  in  this  connection  that  a  water-course  though  artificial 
may  have  been  so  long  used  as  to  become  a  natural  water- 
course prescriptively.-  When  an  artificial  water-course  is 
made  solely  for  drainage,  from  mines  or  otherwise,  the  flow  of 
the  water  through  that  channel  is  from  the  nature  of  the  case 
of  temporary  character,  having  its  continuance  while  the  drain- 
age is  necessary,  and  a  user  of  the  waters  b}'  others  during 
the  statutory  period  necessary  to  acquire  a  title  by  prescrip- 
tion or  for  a  longer  period  affords  no  prescription  of  a  grant  of 


ditch  for  the  purpose  of  irrigating 
his  lands  with  the  ditch  and  water 
light,  and  that  for  six  years  next 
s  ucceeding  said  appropriation 
said  water  was  used  hy  the  plain- 
tiff and  her  grantor,  and  such  use 
was,  with  the  full  knowledge  of 
"lefendants'  grantors,  continuous, 
uninterrupted,  peaceable,  open 
and  notorious,  under  a  claim  of 
right  adverse  and  in  hostility  to 
all,  and  particularly  to  the  defen- 
dants and  their  grantors,  sufl'i- 
ciently  show  a  prescriptive  right 
to  divert  the  water  as  against  the 
defendants  and  their  grantors, 
and  it  isinnnaterial  how  long  they 
may  have  been  riparian  owners  of 
the  fee. 

Chauvet  vs.  Hill,  93  Cal.  407; 
20  Pac.  Rep.  1066;  Ball  vs.  Kehl, 
95  Cal.  606;  30  Pac.  Rep.  7S0. 

1  Bowers  vs.  Kill,  i  Bing.  N.  C. 
549;  Johnson  vs.  Hide,  33  N.  J. 
Rq.  643;  Curtis  vs.  Jackson,  13 
Mass.  507;  Hurd  vs.  Curtis,  7  Met. 
94;  Williams  vs.  Nelson,   23   Pick. 


141;  Day  vs.  Waklen,  46  Mich.  575; 
Corning  vs.  Gould,  16  Wend.  531; 
Warren  vs.  Syme,  7  W.  V.  474; 
Dyer  vs.  Dupui,  5  Whart.  584; 
Bowen  vs.  Team,  6   Rich.  (S.  C.) 

2 Green  vs.  Carrolta,  72  Cal.  2(34; 
Sutcliffe  vs.  Bothe,  32  h.  J.  Q.  B. 
136;  Ivimey  vs.  Stacker,  L.  R.  i 
Ch.  396,  409;  Nuttal  vs.  Brace- 
well,  h.  R.  2  Ex.  i;  Miner  vs.  Gil- 
mour,  12  Moo.  P.  C.  131;  Van 
Breda  vs.  Silberbauer,  L.  R.  3  P. 
C.  S4;  French  Iloek  Com.  vs. 
Hugo,  10  App.  Cas.  336;  P'reeniaii 
vs.  Weeks,  45  Mich.  335;  Murihii- 
vs.  (iates,  78  Maine,  30;  Seibert 
vs.  I.evan,  8  Penn.  St.  383;  Read- 
ing vs.  Althouse,  93  Penn.  St.  400; 
Roberts  vs.  Richards,  44  L.  T.  N. 
S.  271;  50  L.J.  Ch.  297;  51  Id.  944; 
.\ilnms  vs.  Manning,  48  Conn.  477; 
51  Conn.  5;  Peter  vs.  Caswell,  38 
Ohio  St.  518;  Wenllurby  vs. 
Micklejohn,  56  Wis.  73;  I'owel  vs. 
Butler,  5  Ir.  C.  I..  3<k>  (C.  P.). 


478  RIGHTS    IN    THE   ARID    REiJION.         [§297,298 

any  right  to  the  water  in  perpetuity.^  But  while  no  right  can 
thus  be  acquired  by  prescription  against  the  originator  of  an 
artificial  stream  of  a  temporary  character,  yet  so  long  as  he 
continues  to  use  the  canal  for  the  purpose  of  drainage  a 
prescriptive  right  to  the  water  may  be  acquired  against  those 
through  whose  land  the  canal  runs.^  So  also  the  right  to  the 
use  of  water  flowing  through  an  aqueduct  or  pipes  for  domes- 
tic purposes  may  be  acquired  by  prescription. "^ 

IT.  Nature  and  Extent  of  Rights  Acqiiireil  in  Subterranean 
Waters  in  the  Arid  West. 

§  21)8.  Subterranean  Water-Courses — Percohiting  Wa- 
ters.— In  a  previous  chapter  we  touched  upon  the  subject  of 
subterranean  and  underground  water-courses  and  percolating 
waters,'*  so  far  as  was  necessary  to  define  the  jiature  of  those 
waters.  We  will  now  discuss  the  nature  and  extent  of  rights 
that  may  be  acquired  in  and  to  those  waters  in  the  western 
States  and  Territories.  The  general  rule  may  be  stated  thus: 
Where  subterranean  waters  are  running  in  a  defined  channel 
no  distinction  exists  between  waters  so  running  under  the 
surface  or  upon  the  surface  of  the  earth.  They  are  such 
property  or  incidents  to  property  as  may  be  acquired  by  grant, 
express  or  implied,  or  by  appropriation,  and  when  rights  in 
them  are  thus  acquired  the  owner  cannot  be  divested  of  his 
rights  by  the  wrongful  acts  of  another.^  But,  on  the  other 
hand,  waters  merely  percolating  through  the  soil,  without  a 
defined  channel,  are  not  governed  by  the  same  laws  that  sur- 
face streams  are.  Water  percolating  through  the  soil  belongs 
to  the  owners  of  the  freehold  where  it  is  found.'' 

1  Arkwright  vs.  Gell,  5  M.  &  W.  Brown  vs.  Ashley,  16  Nev.  317, 
203;  Gaved  vs.  Martyn,  19  C.  B.  •where  it  was  held  that  rights  in 
732.  water   coming  from   a  spring   by 

2  Ibid.  Greatrex  vs.  Haj-ward,  percolation  are  acquirable  by  prior 
8  Exch.  291.  appropriation,  and  the  appropria- 

SDority    vs.    Dunning,    78    Me.  tor  cannot  be  divested  by  a  subse- 

381.  quent  owner  of  the  soil  by  express 

4  See  Ante  Sections  48,  49,  79,  So.  grant. 

5  Cross  vs.  Kitts,  69  Cal;  221;  10  <>  Cross  vs.  Kitts,  69  Cal.  222;  10 
Pac.  Rep.  409.  Pac.  Rep.  409;  Hanson  vs.  McCue, 


§298,299]  RIGHTS    IN    THE    ARID    REGION.  470 

In  a  recent  case  in  California^  the  Court  held  that  where  a 
spring  is  fed  solely  by  percolating  waters  which  seep  into  it 
from  swamp  or  wet  land  surrounding  the  same,  and  not  by 
any  running  stream  of  water,  there  is  no  water  at  such  spring 
to  which  the  right  of  use  can  be  acquired  either  by  statutory 
appropriation  or  by  adverse  user.  And  no  action  will  lie  in 
favor  of  one  who  has  collected  the  water  at  the  spring  in  a 
reservoir  and  transmitted  it  by  a  pipe  for  use  against  one  who 
has  diverted  the  water  from  the  reservoir  by  means  of  a  tunnel 
and  ditch  constructed  above  the  reservoir  on  his  own  land  for 
irrigation  and  domestic  use. 

The  law  controlling  the  rights  to  subterranean  waters  not 
running  through  a  channel  or  defined  course  is  very  different 
from  that  affecting  the  rights  of  surface  streams.  In  former 
cases  the  water  belongs  to  the  soil,  is  part  of  it,  is  owned  and 
possessed  as  the  earth  is,  and  may  be  used,  removed  and  con- 
trolled to  the  same  extent  by  the  owner,  and  no  action  will 
lie  for  injuries  caused  by  cutting  it  off.- 

§  20U.  Same. — Authorities  DiscusscMl. — In  a  recent  case  de- 
cided in  the  Colorado  Court  of  Appeals^  the  Court  held  that 
if  water  reaches  a  certain  point  by  either  percolating  its  way 
through  the  soil  or  by  subterranean  channels,  and  at  that 
point  is  duly  appropriated,  the  appropriator  has. property  in 
it  of  which  he  cannot  be  divested  by  the  owners  of  the  soil 
through  which  the  water  courses. 

In  that  case  the  trial  court  instructed  the  jury  as  follows: 
"The  water  that  percolates  through  the  soil  without  an  evi- 
dent and  well-known  channel  is  regarded  as  a  part  of  the  land, 
and  belongs  to  the  owner  thereof,  and  he  may  make  sucli  use 


42  Cal.  303;   Roath  vs.  Driscoll,  20  that   the   water   necessary   pcrco- 

Conn.  540;  Ballard  vs.  Tonilinson,  lates  therein,  thereby  diminishing 

24  Am.  Law.  Reg.  636;  RIosier  v.s.  the  water  previously  appropriated 

Caldwell,  7  Nev.  3S3;   64  .Xni.  Dec.  by   other   parties.     McClelleii   vs. 

727.  Hurdle  (Colo.  App.),  33   Tac.  Rep. 

1  Southern  P.ic.  Ry.  Co.  vs.  Dn-  280. 

foor,  95  Cal.  615;  3  Pac.  Rep.  783.  3McClcllnu  vs.  Hurdle  (Colo.  Ct. 

2A  personis  not  justified  in  dig-  of  Ap.);  33  I'ac.  Rep.  2^0. 
ging  wells  so   close    to   a  stream 


480  RIGHTS    IN    THE    ARID    REGION.  [§  299 

of  the  water  as  he  sees  fit  while  it  remains  on,  in  or  under  his 
land."  Mr.  Justice  Reed,  in  rendering  the  opinion  of  the 
Court  of  Appeals  commenting  upon  the  instruction,  said:  "  It 
is  perfectly  safe  to  say  that  it  is  a  matter  of  no  moment 
whether  water  reaches  a  certain  point  by  percolation  through 
the  soil,  by  a  subterranean  channel  or  by  an  obvious  surface 
channel.  If  by  any  of  those  natural  methods  it  reaches  the 
point  and  is  there  appropriated  in  accordance  with  law  the 
appropriator  has  a  property  in  it  which  cannot  be  divested  by 
the  wrongful  diversion  by  another,  nor  can  there  be  any  sub- 
stantial diminution.  To  hold  otherwise  would  be  to  concede 
superior  owners  of  land  the  right  to  all  sources  of  supply 
that  go  to  create  a  stream,  regardless  of  the  rights  of  those 
who  previously  acquired  the  right  to  the  use  of  the  waters 
from  the  stream  below.  Strictly  and  technically  the  instruc- 
tion should  not  have  been  given.  *  *  *  Streams  of  the 
character  described  in  the  complaint  are  frequent  throughout 
the  entire  arid  portion  of  the  continent,  and  their  existence 
and  peculiarities  cannot  be  ignored,  being  well  defined  surface 
streams  with  well  defined  channels  for  long  distances,  then 
for  miles  sunken  until  uniting  with  another  stream,  but  having 
topographically  all  the  physical  characteristics  of  a  stream — 
a  bed,  banks,  valley,  etc.,  at  times  of  high  water,  being  its 
entire  length  a  running  surface  stream,  and  in  low  water  or 
droughts  running  short  distances,  standing  in  pools,  sinking 
into  gravel  or  loose  material  in  its  bed,  percolating  through 
or  passing  under  it,  and  reappearing  at  some  point  below,  but 
still  delivering  at  different  points  a  greater  or  less  volume  of 
water — sometimes  at  the  surface,  sometimes  much  below.  It 
is  not  necessary  to  legally  define  water-courses  having  these 
peculiar  characteristics.  They  are,  as  conduits  of  water,  such 
source  of  supply  as  to  furnish  an  appropriator  a  legal  basis  for 
the  appropriation  of  the  available  water.  In  the  case  of  a 
running  surface  stream  the  question  of  appropriation  is  easy 
of  solution;  but  not  so  in  a  sunken  stream,  particularly  at  a 
point  where  the  water  is  an  indefinite  distance  below  the 
surface.  Under  such  circumstances  it  becomes  at  once  appar- 
ent that  to  appropriate  and  utilize  the  waters  an  'impervious 
dam  must  be  constructed  and  carried  down  to  an  impervious 


§299J  RIGHTS    IN    Till-:    AUID    HKUION.  481 

base  to  stop  and  retain  the  subterranean  water  and  raise  it  to 
the  ditch.  Whenever  such  adequate  provision  is  made  any 
act  diminishing  the  quantity  that  would  naturally  reach  the 
dam  and  add  to  the  supply  up  to  the  limit  of  the  appropria- 
tion— whether  by  diversion  upon  the  surface,  the  sinking  of 
wells  and  using  pumps  or  otherwise,  would  be  actionable." 

It  seems  to  us  that  the  above  rule  is  the  correct  theory  upon 
the  subject. 

Upon  the  subject  of  riparian  rights  on  subterranean  streams 
see  the  case  of  Meyer  vs.  Tacoma  Light  cV  Water  Co.  decided 
by  the  Supreme  Court  of  Washington  on  January  26,  1894.  In 
this  case  the  Court  held  that  where  the  waters  of  a  stream 
gradually  disappear  and  percolate  through  the  sand,  within 
limits  not  at  all  defined  except  by  the  valley  in  which  the 
stream  is  located,  over  an  impervious  substratum,  thus  find- 
ing their  way  to  a  lake,  a  riparian  owner  on  an  outlet  to  the 
lake  has  no  right  to  have  such  underground  flow  protected.^ 

1  35  Pac.  Rep.  601. 


CHAPTER  X. 
Ditch  and  Canal  Companies. 


Section. — 

300.  Coiit.ents  of  chapter. 

I.  UNINCORPORATED    DITCH    AND 

CANAL   COMPANIES. 

301.  Tenants  in  common. 

302.  Tenants  in  common  an'l  co- 

p  irtiiership  distinguished. 

303.  Authorities  on  subject. 

304.  Unincorporated    ditch    com- 

panies— rights   of    majority 
in  interest. 

305.  Authority  of  individual  mem- 

bers of  unincorporated  ditch 
companies. 

306.  Liabilities  and  rights  of  indi- 

vidual members  of  unincor- 
porated ditch  compaides. 

II.  PRIVATE    INCORPORATED 
DITCH   AND   CANAl,  COMPANIES. 

307.  Incorporated  ditch  and  canal 

companies. 

308.  Irrigation  companies  in  gene- 

ral. 

III.  POWERS  OF  DITCH  AND  CANAL 

COMPANIES. 

309.  Power  of  acquiring  rights  of 

way. 


Section.— 

310.  Power    of    acquiring    water 

rights  by  appropriation. 

311.  Same. — Authorities. 

312.  Same. — Power    of    acquiring 

water-rights    by  legislative 
grants. 

313.  Same. — Continued. 

IV.    DUTIES  OF   DITCH  AND  CANAL 
COMPANIES. 

314.  Construction     of     works    by 

ditch  companies. 
3x5.  Same. — .\uthorities   dis- 
cussed. 

316.  Same. — Duty  as  common  car- 

riers. 

317.  Duty   of    ditch   company    to 

furnish  water  to  consumers. 

V.    LIABILITY   OF    DITCH    AND 
CANAL   COMPANIES. 

318.  Liability     of    companies     in 

general. 

319.  Company's  liabilities  for  in- 

juries to  stockholdeis  rights. 


§  33t).  Contents  of  Chapter.— Daring  the  past  few  years 
the  growth  and  importance  of  irrigation  are  evidenced  by  the 
vast  number  of  ditch  and  canal  companies  organised  in  all 
the  States  and  Territories  in  the  arid  west.     These  coaipanies 


§300,301]         DITCH    AND    CAXAL    COMPANIES,  483 

are  of  two  classes,  unincorporated  companies  and  incorporated 
companies.  Their  organization  and  miinagcment  are  controlled 
by  the  statutes  of  each  State  wherein  they  are  organized. 
This  subject  will  be  discussed  more  thoroughly  in  a  subse- 
quent part  of  this  volume.  However,  there  are  certain  rules, 
principally  based  upon  Court  decisions,  common  to  all,  and 
we  will  devote  this  chapter  to  a  discussion  of  those  rules. 
First  we  will  take  up  the  subject  of  unincorporated  ditch  or 
canal  companies;  second,  incorporated  dimpanies;  and  third, 
the  general  rules  governing  those  companies,  including  their 
general  powers,  rights  and  liabilities. 

I.  Unincorporalei  Ditcli  and  Canal  Conipanioi. 

§  31)1.  Tenants  in  Common.— Where  a  ditch  through 
which  water  is  diverted  and  applied  to  any  beneficial  purpose 
is  owned  by  several  proprietors,  and  th^ir  relation  is  not  defined 
by  special  agreement  to  ths  contrary,  th:^y  are  to  b^  regarded 
as  tenants  in  common  of  the  ditch,  and  their  rights  are  deter- 
mined and  governed  by  the  rulesof  law  regulating  tenancy  in 
common.^  As  tenants  in  common  each  one  has  the  right  to 
enter  upon  and  occupy  the  whole  of  the  common  property  to 
maintain  an  action  against  any  co-tenant  to  recover  his  share 
of  the  rents  and  profits.^  And  where  different  persons  separ- 
ately appropriate  the  waters  of  a  stream  and  arc  severally 
using  the  same  under  certain  regulations  as  to  the  time  and 
manner  of  such  use  they  are  tenants  in  common,  and  each  of 
them  may  maintain  an  action  to  enjoin  a  trespasser  from  di- 
verting any  portion  of  the  water  thus  appropriated.  Upon 
this  last  proposition  the  Supreme  Court  of  California,  in  the 

1  Bradley  vs.  Ilarkiicss,  26  Cal.  cral  and  distinct  titles,  niul  not  by 
69;  Jones  vs.  Parsons,  25  Cal.  100;  joint  tiik-s,  hnt  occnpy  in  coni- 
Kced  V:?.  Spicer,  27  Cal.  63;  Car-  ninn.  The  only  niiity  rcco;jni/c»l 
penler  vs.  Webster,  27  Cal.  524;  between  iheni  bciuK  tlial  of  posses- 
Park   VS.  Kilhani,  8  Cal.   77;  Dnr-  sion. 

yea  vs.  Burt,  28  Cal.   587;  Decker  Bonvier's     Law     Dictionary;    2 

vs.   Howell,   42  Cal.  642;   RIcCon-  Bla.  Com.   I91. 

nell  vs.  Denver,  35  C.d.  369.  -'Ibid.     Abel    vs.   l.uve.     17  C.il. 

Tenants  in  conmion  arc  snch  ns  233. 
lialJ  la:idi  and  icnenicnlH  by  sev- 


484  DITCH    AND    CANAL    COMPANIES.  [§  301 

case  of  lyytle  Creek  Water  Co.  vs.  Perdew,^  said:  "  The  de- 
fendant just  mentioned  was  a  trespasser,  using  the  waters  of 
the  creek  without  an}^  right  whatsoever.  Why  a  lawful  ap- 
propriator  should  not  be  entitled  to  an  injunction  against  a 
trespasser  we  cannot  perceive.  It  is  said  that  the  waters  are 
appropriated  severally  by  those  who  did  appropriate  them. 
Concede  this  to  be  so  and  we  do  not  perceive  that  it  makes 
any  difference.  If  they  are  tenants  in  common  of  the  water, 
such  tenants  and  each  of  them  are  tenants  seized /><?r  tny  ^and 
not  per  /<?«/and  entitled  to  the  possession  of  the  whole.  This 
must  be  so,  because  no  one  of  them  can  certainly  state  which 
part  of  them  is  his  own.  They  hold  by  unity  of  possession, 
though  their  titles  be  distinct.  If  this  unity  be  destroyed 
the  tenancy  no  longer  exists.  *  *  *  •  ^  person  without 
title  and  wrongfully  in  the  possession  cannot  gainsay  the 
right  of  each  of  the  tenants  in  common  to  the  possession  of 
the  whole.  As  between  tenants  in  common  and  a  trespasser 
each  tenant  in  common  is  better  entitled  to  the  possession 
than  a  wrong  doer'  (Per  Crockett,  J.,  43  Cal.  71.)  He  can 
maintain  an  action  against  a  trespasser  and  recover  possession 
of  the  whole  estate  held  in  common.  This  being  so  it  follows 
that  he  can  take  steps  to  protect  the  whole.  It  would  be  an 
anomaly  in  the  law  if  such  tenant  could  recover  the  whole 
property  from  a  wrong  doer  and  could  not  alone  intervene  to 
protect  it  from  nuisances  and  trespassers  which  can  be  re- 
dressed by  the  preventive  process  of  injunction. 

"Whether  joint  appropriators  holding  the  estate  as  joint 
tenants  or  tenants  in  common  the  same  is  the  result.  Each 
can  recover  the  whole  or  take  the  necessary  steps  to  protect 
the  whole  against  the  acts  of  a  wrong  doer."  ^ 

One  tenant  in  common  can  also  enjoin  a  threatened  in- 
jury.^ As  co-tenants  they  are  entitled  to  use  all  the  waters, 
and  when  an  outsider  diverts  from  them  or  one  of  them  he  is 
injuring  all  and  each  of  them.  He  may  be  doing  more  injury 
to  the  one  who  is  entitled  to  use  it  at  the  time  he  is  diverting 

1  65  Cal.  452;  2  Pac.  Rep.  732.  ^^  Van  Winkle  vs.  Curtis,  2  Green 

3  2  Bla.  Com.  191,  192;  Carpenter       Cli.  422. 
vs.  Webster,  27  Cal.  524;  Williams 
vs.  Sutton,  43  Cal.  71. 


§  301] 


DITOH    AND    CANAL    OOMTAXIES. 


iSl 


it,  but  he  is  at  all  times  when  diverting  the  water  guilty  of 
trespass  on  the  rights  of  each  and  every  one  of  the  co-tenants, 
and  each  of  them  has  a  right  to  have  the  preventive  powers 
of  a  Court  of  justice  to  put  a  stop  to  his  illegal  acts  without 
joining  in  the  suit  the  other  co-tenants  as  plaintiflTs.' 

In  quite  a  recent  case  in  California  ^  the  Court  held  that  a 
Court  of  equity  has  power  to  ascertain  and  determine  as 
between  several  appropriators  of  a  natural  stream  the  extent 
of  the  respective  rightri  of  each  to  the  waters  therein  flowing, 
to  regulate  the  use  thereof  in  such  a  way  as  to  maintain 
equality  of  rights  in  the  enjoyment  of  the  common  property, 
and  to  enjoin  a  subsequent  appropriator  from  interfering  with 
the  rights  of  the  prior  appropriators  as  ascertained  and  estab- 
lished by  the  Court.  Hence  it  follows  that  where  one  of  two 
or  more  co-owners  in  the  use  of  water  of  a  stream  appropri- 
ated by  them  for  beneficial  purposes  diverts  for  use  a  greater 
quantity  of  water  than  of  right  belongs  to  him  and  so  as  to 
materially  diminish  the  quantity  to  which  the  others  are  en- 
titled, such  parties  are  entitled  to  enjoin  the  wrong-doer  from 
so  diverting  the  water  to  their  injury.-* 


iLyttle  Creek  Water  Co.  vs.  Per- 
(lew,  65  Cal.  447;  2  Pac.  Rep.  732. 

A  tenancy  in  common  in  a  water 
ditch  arising  under  a  deed  is  not 
severed  by  claiming  under  a 
promise  or  parol  license  from  a 
third  person,  where  the  deed  and 
promise  appear  to  be  part  of  the 
tran.saction.     Campbell  vs.  Sivers, 

I  Ariz.  161;  25  Pac.  Rep.  540. 
SFrey  vs.  Lowden,  70  Cal.  550; 

II  Pac.  Rep.  838. 

3  Lorenzvs.Jacobs,3Pac.RL'p.654. 
Also  see  Combs  vs.  Slaytoii,  19 
Ore.  99;  26  Pac.  Rep.  661,  where 
the  Court  held  that  an  agreement 
between  parlies  who  have  settled 
upon  lands  in  the  vicinity  of  a 
stream  of  waler  capable  of  being 
utilized  for  the  purposi-s  of  irriga- 
tion as  to  the:ii)proi)riation  of  the 
water  for  sucJi  purpose,  and  as  to 


the  relative  quantity  which  each 
one  shall  be  entitled  to  use,  where 
such  agreement  has  been  acted 
upon  for  a  long  time  by  the  par- 
ties, and  a  violation  of  it  by  any- 
one of  them  would  produce  irre- 
parable damage  to  others,  will  be 
enforced  in  a  Court  of  equity. 

McGillivcry  vs.  Kvans,  27  Cal. 
92;  Meagher  vs.  Herdeiibrook,  11 
Mont.  385;  28  Pac.  Rep.  451. 

Tlie  same  irrigating  dilch  may 
have  two  or  more  piiorilics  be- 
longing to  the  same  or  diflerent 
parlies,  and  two  or  Jiiore  persons 
may  divert  waler  tlirougli  tlie 
same  head-gate  for  the  irrigation 
of  their  respective  farnis  without 
any  surrender,  joinder  or  merger 
of  their  respective  pri<  silies.  Nich- 
ols vs.  Mcintosh  et  nl  (Colo),  34 
Pac.  Rep.  278. 


486  DITCH   AND    CANAL   COMPANIES.  [§  302 

§  332.  Ta  ingy  in  Coimnan  ani  Copirtiier^hip  BJstin- 

guislieil. — The  relation  of  several  proprietors  as  co-tenants  in 
a  ditch  have  some  of  the  incidents  of  a  partnership. \  The 
determination  of  the  ri<^hts  of  the  parties  in  any  controversy 
regarding  interests  in  ditch  property  in  the  western  States  and 
Territories  depends  upon  the  question  whether  the  property 
in  question  was  held  in  the  ordinary  mode  of  holding  ditches 
and  mining  lands  in  the  States  as  tenants  in  common,  or  held 
as  partnership  property  in  the  strict  sense  in  which  these  terms 
are  used  in  relation  to  mercantile  transactions.  There  is  no 
doubt  but  that  ditches,  mining  claims  and  lands  may  be  held 
as  partnership  property  as  well  as  any  other,  and  when  so  held 
for  the  purpose  of  so  changing  the  partnership  obligations  or 
settling  the  partnership  affairs  that  such  property  will  be  sub- 
ject in  equity  to  all  the  incidents  of  other  partnership  property. 
The  same  can  also  be  said  respecting  controversies  us  to  the 
rights  of  persons  claiming  rights  in  the  waters  of  a  stream 
derived  from  the  same  original  source;  the  waters  may  be 
held  as  partnership  property  and  the  persons  owning  the  same 
are  not  necessarily  tenants  in  common.^  The  title  to  the  water 
rights  may  be  held  by  parties  as  tenants  in  common,  while 
there  may  be  some  of  the  incidents  of  a  partnership  connected 
therewith.  As  for  example,  there  might  be  a  tenancy  in  com- 
mon respecting  the  ownership  of  the  ditch  itself,  and  a  strict 
partnership  for  the  purpose  of  diverting  the  water  and  selling 
it  to  others.  The  rule  that  applies  to  mining  claims  also 
applies  to  ditch  property.  The  titles  to  the  claims  may  be 
held  by  parties  as  tenants  in  common,  while  on  the  other  hand 
there  may  be  a  strict  partnership  for  the  purpose  of  working 
the  claims;  or  there  may  be  a  partnership  both  in  the  owner- 
ship and  in  the  working  of  the  claims.  Whether  the  rela- 
tionship of  the  parties  is  one  or  the  other,  or  neither,  must 
depend  upon  the  facts  in  each  particular  case.^ 

IGoodenow    vs.    Ewer,    i6   Cal.  Duyrea  vs.  Burt,  28  Cal.  568;  Bis- 

461;  Jones  vs.  Parsons,  25  Cal.  100.  sell  vs.  Foss,  114  U.  S.  259;  Hewitt 

2  Lytle  Creek  W.  Co.  vs.  Perdew,  vs.  Storey,  39  Fed.  Rep.  719;  Hen- 
65  Cal.  447;  2  Pac.  Rep.  732.  derson    vs.    Nichols,  67  Cal.    152; 

3  Bradley  vs.   Harkiies-^,  26  Cal.  O'Connor  vs.  North  Truckee  Ditch 
76;  Jones  vs.  Parsons,  25  Cal.  104;  Co.,  17  Nev.  245. 


§303]  DITCH    AND   CANAL   COMPANIES.  487 

§  3C3.  Aulhorilios  on  Sulijt'ct.— I'lcii  this  -uljtct  cf  dis- 
tinction between  a  tenancy  in  ccmnion  and  a  co-partnership  in 
ditch  property  the   decision  of  the  Supreme  Court  of  Cali- 
fornia  in  the  case  of  Bradley  vs.  Harkness*  is  cited  as  a  lead- 
ing case.      The  Court  i^aid:     "  In  the  alsence  of  any  special 
facts   constituting   them   scmething   else   the   proprietors  of 
ditches  in  the  mining  districts  are  tenants  in  common  of  real 
estate,  and  tlieir  rights  in  the  ditch  and  in  the  profits  arising 
from  the  sales  of  water,  although  in  the  latter  case  analogous 
to  those  of  co-partners,  arc  governed  by  the  law  of  tenancy  in 
common.     The  ditch  is  real  estate,  and  each  proprittor  biixsin 
or  sells  out  or  incumbers  Ins  interest  at  pleasure,  regardless  of  the 
knowledge  or  consent  or  -dishes   of  his  co proprietors,  and  with- 
out aflfecting  the  legal  relation  existing  between  them  beyond 
the  going  out  of  one  and  the  coming  in  of  another.     This  can- 
not be  done  where  a  co-partnership  exists.     One  cannot  buy 
in  or  sell  out  of  a  partnership  at  pleasure.     Such  an  act  would 
of  itself  work  a  dissolution  of  the  partnership  and  necessitate 
its  final  settlement  and  closing  out.     A  tenancy  in  common 
results  from  a  rule  of  law  by  which  it  is  also  controlled  and 
governed.     A  partnership,  on  the  contrary,    is  the  result  of 
agreement  between  parties  which  also  supplies  rules  for  its 
government.     The  former  relation  is  undisturbed  by  a  change 
of  tenants,  but  the  latter  admits  of  no  change  as  to  its  mem- 
bers; and  where  a  change    takes  place   by  the  consent  and 
agreement  of  all  the  parties  concerned  the  old  firm  is  thereby 
dissolved  and  a  new  one  created.     Thus  the  incidents  aiuiexed 
to  each  have  a  different  origin  and  are  diverse.     Also  the  pro- 
ceedings for  a  dissolution  of  these  relations  are  different  and 
are  grounded  upon  entirely  different  facts.     As  to  the  first, 
the  mere  desire  of  one  of  the  tenants  is  sufficient  to  set  the 
courts  in  motion;  but  as  to  the  latter,  cause  must  be  shown."  * 

1  26  Cal.  77.  477.   where  it    was  Iiel.I  that    the 

2See   also   Duyrea  vs.    lUirt,   28  facts  involved  in  the  case  did  not 

Cal.   587;    Decker  vs.   Howell,  42  create  a  partnership  between  the 

Cal.  462;    Lytic  Creek    Water  Co.  plaintiff  and   Kelly,  either  in   ihe 

vs.    Perdew,    65   Cal.  447;    2    Pac.  <litch  as  a  mere  comlnit  or  in  the 

Rep.  732.  water  Jlowinj^  through  it,  sons  to 

See    I'itzell  vs.    Leaky,    72    Cal.  create  a  lien  tliereon  in   favor  of 


488  DITCH    AND    CANAL    COMPANIES.  [§303 

The  peculiarities  of  what  is  called  a  mining  partnership — 
the  rules  governing  which  are  identical  with  those  governing 
interests  in  waters — are  best  set  forth  in  the  opinion  of  the 
Supreme  Court  of  the  United  States  in  the  case  of  Kahn  vs. 
Central  Smelting  Co.^  Mr.  Justice  Field,  in  speaking  for  the 
Court,  said-:  "The  plaintiff  avers  that  his  association  with 
his  co-tenants  of  the  mine  was  a  mining  partnership,  and 
seeks  to  enforce  his  rights  as  a  member  of  such  partnership, 
and  to  obtain  such  other  and  further  relief  as  he  may  be 
equitably  entitled  to.  The  opinion  of  the  Judge  before  whom 
the  case  was  heard  shows  that  he  did  not  recognize  the  exist- 
ence of  any  partnership  in  mines  differing  from  ordinary  part- 
nership, and  his  finding  that  there  was  no  partnership  as 
alleged  between  the  plaintiff  and  the  defendant  necessarily 
followed.  *  *  *  Mining  partnerships  as  distinct  associa- 
tions, with  different  rights  and  liabilities  attaching  to  their 
members  from  those  attaching  to  members  of  ordinary  trading 
partnerships,  exist  in  all  mining  communities;  indeed,  without 
them  successful  mining  would  be  attended  with  difficulties 
and  embarrassments  much  greater  than  at  present. 

"In  Skillman  vs.  Lachman  -  the  question  of  the  relation 
existing  between  parties  owning  several  interests  in  a  mine 
came  before  the  Supreme  Court  of  California,  and  that  Court 
said:  'Whatever  may  be  the  rights  and  liabilities  of  tenants 
in  common,  not  being  worked,  it  is  clear  that  where  the 
several  owners  unite  and  co-operate  in  working  a  mine  then  a 
new  relation  exists  between  them,  and  to  a  certain  extent 
they  are  governed  by  the  rules  relating  to  partnerships.  They 
form  what  is  termed  a  mining  partnership,  which  is  governed 
by  many  of  the  rules  relating  to  ordinary  partnership,  but  also 
to  some  rules  peculiar  to  itself,  one  of  which  is  that  one  per- 
son may  convey  his  interest  in  the  mine  and    business  with- 


one    of    the    partners    advancing  One  partner  in  a  water  right  ac- 

niore  than  his  proportion  of  the  quired    by   appropriation   cannot 

capital;  nor  did  it  constitute  them  sell  and  convey  the  interest  of  his 

tenants  in   common   of   the  land  co-partner.     Henderson  vs.  Nich- 

traversedby  the  ditch  so  as  to  pre-  ols,  67  Cal.  152;  7  Pac.  Rep.  412. 
vent  the  plaintiff  from  filing  a  de-  1  102  U.  S.  641. 

claration  of  homestead  thereon.  233  Cal.  203. 


§303]  DITCH    AND    CANAL    COMPANIES.  489 

out  dissolving  the  partnership.'  The  same  doctrine  is  asserted 
in  numerous  other  cases,  not  only  in  that  Court  but  in  the 
Courts  of  England.  .\ssociations  for  working  mines  are 
generally  composed  of  a  greater  number  of  partners  than  or- 
dinary trading  partnerships;  and  it  was  early  seen  that  the 
continuous  working  of  a  mine,  which  is  essential  to  its  suc- 
cessful development,  would  be  impossible,  or  at  least  attended 
with  great  difficulties,  if  an  association  was  to  be  dissolved 
by  the  death  or  bankruptcy  of  one  of  its  membL-rs  or  the 
assignment  of  his  interests.  A  differeui  rule  from  that  which 
governs  the  relations  of  members  of  a  trading  partnership  to 
each  other  was  therefore  recognized  as  applicable  to  the  rela- 
tions to  each  other  of  members  of  a  mining  association.  The 
delectus personae ,  which  is  essential  to  constitute  an  ordinary 
partnership,  has  no  place  in  these  mining  associations."  * 

Also  in  the  later  case  of  Bi.ssel  vs.  Foss- the  same  Court 
affirmed  the  doctrine  above  set  forth,  and  Mr.  Justice  Wood 
in  delivering  the  opinion  of  the  Court  after  quoting  at  length 
from  the  opinion  of  Mr.  Justice  Field  in  the  case  of  Kahn  vs. 
Central  Smelting  Co..  above,  added:  "  This  case  settles  two 
propositions:  First,  that  the  members  of  a  mining  associa- 
tion have  no  right  to  object  to  the  admission  of  a  stranger 
into  the  association  who  buys  the  share  of  one  of  the  asso- 
ciates; and  second,  that  the  sale  and  assignment  by  one  of  the 
associates  of  his  interest  does  not  dissolve  the  mining  partner- 
ship. It  follows  from  these  propositions  that  one  member  of 
a  mining  partnership  has  tlie  right,  without  consulting  his 
associates,  to  sell  his  interest  in  the  partnership  to  a  stranger, 
and  that  such  a  sale  injures  no  right  or  property  of  the  other 
associates.  Much  less  does  a  purchase  of  one  associate  of  tlie 
share  of  another  inflict  any  wrong  upon  the  other  members  of 
a  partnership.  There  is  no  relation  of  trust  or  confidence 
between  mining  partners  which  is  violated  by  the  sale  and 
assignment  of  one  partner  to  a  stranger  or  to  one  of  his  a.sso- 

1  Citing  Duvrea  vs.  Burt,  aS  Cal.  58  Cal.  369;  McConncll  vs.  ni-iivt-r. 

569;     vSettenibre   vs.    rutiKiin,    30  35  Cal.  369;  liradli y  vs.  Harkiuss. 

Cal.  490;  Taylor  vs.  Castle,  42  Cal.  26  Cal.  77. 

367;   Montgomery  vs.  Harrington,  -114  I'-  ^-  2.S3- 


490  DITCH    AND    CANAL   COMPANIES.        [§  303-305 

ciates  of  his  share  in  the  property  and  business  of  the  asso- 
ciation." 

§  3i)4.  Unincorporated  Bitch  Companies— Kights  of  Ma- 
jority in  Intercut. — The  parties  constituting  an  unincorpor- 
ated ditch  or  mining  company  in  the  arid  region,  from  the 
above  authorities,  may  be  the  owners  of  its  property  as  tenants 
in  common,  and  in  the  diversion  and  sale  of  the  waters  for 
sale  to  others  and  profit,  or  in  the  working  of  their  mine,  may 
be  considered  as  partners.^  _  As  the  property  can  only  be  used 
in  entirety  it  is  at  times  indispensable  to  the  conduct  of  the 
business  that  those  owning  the  major  portion  of  the  property 
should  have  power  to  control  in  case  all  cannot  agree,  other- 
wise the  work  might  become  wholly  discontinued  or  worked 
to  a  disadvantage.  As  has  been  seen  in  the  previous  sections, 
mining  partnerships  are  not  usually  founded  on  the  dclechis 
personac,  and  hence  it  follows  that  the  powers  of  the  indi- 
vidual members  interested  are  much  more  limited  than  are 
the  powers  of  the  individual  members  of  a  purely  commercial 
or  trading  partnership.  There  is  no  doubt  but  that  it  often 
works  great  inconvenience  and  perhaps  loss  to  the  minority  in 
interest  of  a  mining  partnership  if  the  majority  is  allowed  to 
do  as  they  deem  to  their  own  advantage  regardless  of  the 
rights  and  interests  of  the  minority.  But  notwithstanding  the 
danger  of  the  abuse  of  power  in  such  cases,  what  may  be  neces- 
sary and  proper  for  carrying  on  the  business  for  the  joint 
benefit  of  all  concerned  must  be  determined  by  those  holding 
in  the  aggregate  the  major  part  of  the  property.  And  if  the 
powers  which  are  thus  attempted  to  be  exercised  are  not 
necessary  and  proper  for  the  success  of  the  enterprise  those 
whose  interests  are  imperilled  or  disastrously  afiected  thereby 
'have  a  right  to  resort  to  the  Courts  for  redress. ^ 

§305.  Authority  of  Individual  Memhers  of  Unincor- 
porated Ditch  Company.— Another  peculiarity  of  an  unin- 
corporated ditch  company  is  that  a  member  of  such  a  com- 
pany has  no  general  authority  by  virtue  of  such  membership 

dDuryea  vs.   Burt,   28  Cal.  569;  2  ibid.     Abel   vs.  Love,    17  CaL 

Dougherty  vs.  Creary,  30  Cal.  291.       233. 


§305]  DITCH    AND    CANAL    COMPANIES.  I'Jl 

to  bind  the  company  by  his  contracts.  Neither  has  tlie  super- 
intendent or  general  manager  of  such  a  compatiy  tlie  authority 
to  bind  the  company  by  a  promissory  noteor  any  otlicr  obliga- 
tion for  materials  to  be  used  by  the  company  or  for  anything 
else,  unless  the  authority  to  give  such  note  was  expressly  con- 
ferred upon  him  by  the  company,  or  such  authority  may  be 
implied  from  his  acts  recognized  by  the  company  with  full 
knowledge  of  the  acts  at  the  time  of  the  recognition.* 

In  the  case  of  McConnell  vs.  Denver-  the  Court  said:  "  Some 
of  the  incidents  of  a  partnership  pertain  l)  them,  and  some  of 
mere  tenancies  in  common,  but  the  powers  of  the  several  mem- 
bers by  virtue  of  being  members  are  different  from  those  of 
commercial  partnerships.  A  member  of  one  of  these  associa- 
tions has  no  general  authority  by  virtue  of  such  membership 
to  bind  the  company  by  his  contracts.  Nor  has  the  managing 
agent  any  authority  other  than  that  conferred  upon  him, 
either  expressly  or  by  necessary  implication  from  his  acts 
recognized  by  the  company  with  full  knowledge  of  the  acts 
at  the  time  of  the  recognition.  (Skillman  vs.  Lachman, 
supra.)  The  finding  of  the  court  evidently  resulted  from 
overlooking  this  distinction  between  commercial  partnerships 
and  associations  of  this  character." 

But,  on  the  other  hand,  if  a  ditch  company  of  this  class 
duly  authorizes  its  superintendent  to  give  the  company  notes 
for  materials  before  then  purchased  by  the  company  all  mem- 
bers are  bound  by  the  notes  whether  they  were  such  members 
when  the  materials  were  purchased  or  not.^ 

1  McConnell  vs.  Denver,  35  Cal.  such,   the   pnrlncrship  continued 

365;  Jones  vs.  Clark,   42   Cal.   194;  ]ial)le,  at  least  to  tlieexlt-nt  of  the 

Skillman  vs.  Lachman,  23  Cal.  19H;  partnership  assets,  allhou^^h  some 

Bradley  vs.  Ilarkness,  26  Cal.  76;  nienihers  of    ihe  conijjany  ha<l  in 

Setlenibre    vs.    Putnam,    30   Cal.  the    meantime   pnited    witli  their 

403.  interests  in  the  concern.  The  new 

235  Cal.  370.  mcmlers     purchased     with     full 

3McConnell  vs.  Denver,  35  Cal.  knowledge   of    the    indehledncss 


365- 


and   of   the   note,  and   of   couise 


In  Jones  vs.  Clark,   42  Cal.  194.  took  their  interest  subject  to  the 

the  Court  said:     "  The  note  being  payment  of  the  jjartuerhhip  debts. 

established    as  a    valid    contract,  Duryea  vs.  lUirl,  2S  Cal.  569. 
binding  upon  the  pattnerhhip  as 


492  DITCH    AND    CANAL    COMPANIES.         [§306,307 

§300.  Liability  and  Kights  of  Individual  Members  of 
Unincorporated  Ditch  Companies. — A  tenant  in  common  of 
a  water  ditch  may  maintain  an  action  to  recover  his  share  of 
the  rents  and  profits  of  his  co-tenant  in  possession  and  col- 
lecting the  same.  Indeed,  these  operations  may  be  regarded 
as  partnerships  so  far  as  this  matter  is  concerned,  the  share- 
holders being  regarded  as  partners  entitled  to  participate  in 
the  profits  derived  from  the  business  of  carrying  on  a  ditch  or 
sales  of  water,  and  may  enforce  their  rights  without  necessar- 
ily working  a  dissolution  of  the  partnership. ^  If  one  of  two 
owners  of  a  flume  consents  to  and  directs  the  opening  of  a 
water  ditch  above  the  flume,  by  means  whereof  the  water  from 
the  ditch  flows  over  and  injures  the  flume,  the  other  joint 
owner  cannot  recover  damages  from  him  for  such  injury,  on 
the  ground  that  the  "act  of  one  was  the  act  of  all."^  As 
regards  the  rights  of  ditch  owners  it  has  been  held  that  the 
failure  of  one  partner  in  a  ditch  to  pay  his  share  or  proportion 
of  the  expenses  of  the  concern  does  not  forfeit  his  right  in 
the  common  property.^ 

II.  Private  Incorporated  Ditch  and  Canal  Companies. 
§307.  Incorporated   Ditch  and  Canal  Companies.  —  As 

private  corporations  exist  only  and  by  virtue  of  the  laws  of 
the  States  and  Territories  under  which  they  are  organized, 
the  statutes  of  those  States  must  be  followed  in  their  organiza- 
tion. In  most  of  the  States  and  Territories  of  the  arid  west 
there  are  special  statutes  governing  the  organization  and  con- 
trol of  ditch  and  canal  companies  for  the  purpose  of  conduct- 
ing water  for  irrigation.*  These  statutes  also  regulate  and 
control  these  corporations  respecting  their  powers  of  securing 
water  rights,  the  protection  of  these  rights  and  the  duties  of  the 
corporations  and  their  liabilities.     Among  the  powers  granted 

iMcConnell  vs.   Denver,  35  Cal.  vs.  Oakland  Q.  M.  Co.,  64  Cal  146. 

369;  Skillman  vs.  Lachman,  23  Cal  2  Crary  vs.  Campbell,  24  Cal.  634. 

203;  Bradley  vs.  Harkness,  26  Cal.  3  Kimball   vs.  Gearhart,  12    Cal. 

69;  Duryea   vs.  Burt,  28  Cal.  577;  28. 

Settembre  vs.  Putnam,  30  Cal.  490;  4  See  Part  Second  for  Statutory 

Jones  vs.  Clark,  42  Cal.  180;  Decker  Enactments  on  subject, 
vs.  Howell,    42  Cal.    636;    McCord 


§307-309]         DITCH    AND    CANAL    COMPANIES.  403 

to  these  corporations  is  the  right  of  eminent  doraam  mi  ac- 
quiring rights  of  way  necessary  for  their  ditches  and  canals. 
These  rights  may  be  acquired  by  condemnation  proceedings, 
and  are  universal  in  all  the  States  or  Territories  of  the 
west.  Another  important  right  conferred  by  some  of  the 
States  is  that  of  acquiring  the  existing  rights  to  water'  by 
condemnation  proceedings. 

The  statutes  protect  the  properly  of  the  canal  or  ditch  com- 
panies by  providing  severe  penalties  for  injuries  to  or  destruc- 
tion of  it.  Most  of  these  statutes  also  provide  a  maximum 
price  which  may  be  charged  for  the  water  when  sold  to  con- 
sumers. And  the  companies  are  made  liable  for  all  damages 
that  may  be  caused  by  their  negligence.  These  subjects,  how- 
ever, will  be  more  fully  discussed  in  a  subsequent  portion  of 
this  work.- 

§  308.  Irrigation  ( oinimnies  in  (iencral.--  Whether 
ditches,  canals,  reservoirs  or  other  works,  or  the  water-rights 
appurtenant  thereto,  are  owned  and  controlled  by  persons  as 
partners;  or  whether  they  are  owned  and  controlled  by  per- 
sons associated  together  as  tenants  in  common  in  an  unincor- 
porated company  and  managing  the  ditch  property  under  one 
control;  or  owned  by  a  single  individual;  or  again  whether  the 
property  is  owned  by  persons  associated  together  as  private 
incorporated  companies,  the  amount  each  one  owns  in  the 
company  being  represented  by  the  shares  of  stock  issued 
to  him,  there  are  certain  general  powers,  duties  and  liabili- 
ties of  the  canal  or  ditch  companies  which  arc  common  in  all 
the  States  and  Territories  of  the  arid  region.  We  will  take 
these  subjects  up  in  their  order. 

III.  Powers  of  Ditrh  and  (anal  <'onipanies. 

§  309.  Power  of  AcMjuiriny;  Itights  of  Way.— The  Act  of 
Congre.ss  of  July    26,    1S66,   provided   that:     "The   ri.^ht  of 

1  See  Part  vSecoiul.  tiou  treat  the    sale  as    invalid  and 

2  Wliere  a  corporation  sold  soiiu:  reinstate  the  stockholder  .>>o  as  to 
of  its  stock  for  a  non-payment  of  render  him  liahle  for  the  ns.sess- 
assessments  and  hid  the  same  in,  jnent.  (Colo.  Ap]).)  Tallerson  elal. 
in  which  the  stockholder  nc-  vs.  llrown  \'  Campion,  .^4  I'ac. 
quicsced,  it  cannot  on  its  own  mo  Rep.  76c). 


494  DITCH   AND    CANAL   COMPANIES.  [§  309 

way  for  the  construction  of  ditches  and  canals  for  the  purposes 
herein  specified  is  acknowledged  and  confirmed."^  By  the 
Act  of  July  9,  1870,  Congress  further  provided  that  "  all  pat- 
ents granted  shall  be  subject  to  any  vested  and  accrued  right 
or  rights  to  ditches  and  reservoirs  and  in  connection  with 
such  water  rights  as  may  have  been  acquired."  ^  By  the  Act 
of  Congress  of  March  3,  1891,  Congress  further  provided: 
"  That  the  right  of  way  through  the  public  lands  and  reserva- 
tions of  the  United  States  is  hereby  granted  to  any  canal  or 
ditch  company  formed  for  the  purpose  of  irrigation  and  duly 
organized  under  the  laws  of  any  of  the  States  or  Territories 
*  *  *  to  the  extent  of  the  ground  occupied  by  the  waters 
of  the  reservoirs  and  of  the  canal  and  its  laterals,  and  fifty 
feet  on  each  side  of  the  marginal  limits  thereof."  Then  fol- 
lows specific  rules  for  filing  plats  of  the  surveys  and  approval 
of  same  by  the  Secretary  of  the  Interior,  and  the  first  part  of 
section  20  of  the  Act  provides  that  "  the  provisions  of  tliis 
Act  shall  apply  to  all  canals,  ditches  or  reservoirs  heretofore 
or  hereafter  constructed,  whether  constructed  by  corporations, 
individuals  or  associations  of  individuals,  on  filing  the  certi- 
ficates and  maps  herein  provided  for.  If  such  ditch,  canal  or 
reservoir  has  been  or  shall  be  constructed  by  an  individual  or 
association  of  individuals  it  shall  be  sufficient  for  such  indi- 
vidual or  association  of  individuals  to  file  with  the  Secretary 
of  the  Interior  and  with  the  register  of  the  land  office  where 
said  land  is  located  a  map  of  the  line  of  such  canal,  ditch  or 
reservoir  as  in  case  of  a  corporation,  with  the  name  of  the 
individual  owner  or  owners  thereof,  together  with  the  articles 
of  association,  if  any  there  be."  ^ 

1  Revised  Statutes  of  the  TTnited  lions  concernin.ij  right  of  way  for 
States,  2339;  see  Ante  Section  canals,  ditches  and  reservoirs  for 
11^.  the  purpose  of  irrigation  over  the 

2  See  Revised  Stat.  U.  S.  2340;  public  lands  and  reservations  has 
Ante  Section  116.  the  following  provisions: 

3  See  Ante  Section  119,  Supp.  i.  "This  Act  is  evidently  de- 
Rev.  St.  U.  S.  1891,  p.  946,  Sees.  signed  to  encourage  the  niuch- 
18,  19.  20,  2r.  needed     work     of      constructing 

The  circular  of  the  General  ditches,  canals  and  reservoirs  in 
Laud  Office,  approved  February  the  arid  portion  of  the  country  by 
20,    1894,   containing   the   regula-      granting  a  right  of  way  over  the 


§309] 


DITHII    AND    CANAL    COMPANIES. 


495 


From  the  above  provisions  there  can  be  no  question  regard- 
ing the  power  of  ditch  and  canal  companies  to  acquire  rights 
of  way  over  the  public  lands  of  the  United  States,  and  that 
too  whether  those  "'companies  "  are  composed  of  "  corpora- 
tions, individuals  or  associations  of  individuals." 


public  lands  necessary  to  the 
tnainteiiaiice  and  use  of  llie  .same. 

"  The  i-ightcenth  section  of  the 
Act  provides  that: 

"  '  The  privilej^e  herein  jjranted 
shall  not  be  construed  to  interfere 
witli  the  control  of  water  for  irri- 
gation and  other  purposes  under 
the  authorit)'  of  the  respective 
States  or  Territories.' 

"  The  control  of  the  flow  and  use 
of  water  is  therefore  a  matter  ex- 
clusively under  the  Slate  or  Ter- 
ritorial control,  tlie  matter  of  ad- 
ministration within  the  jurisdic- 
tion of  this  departtneiit  beiuji; 
limited  to  the  approval  of  ijiaps 
carrying  the  right  of  way  over  the 
public  lands. 

"In  submitting  maps  for  ap- 
proval under  this  Act,  however, 
which  in  any  wise  appropriate 
natural  sources  of  water  supply, 
such  as  the  damming  of  rivers  or 
the  api)ropriation  of  lakc^,  such 
maps  should  be  accompanied  by 
proofs  that  tlie  plans  and  purpose 
of  tlie  projectors  liave  been  regu- 
larly submitted  and  approved  in 
accordance  with  the  local  laws  or 
customs  governing  the  use  of 
water  in  the  Slate  or  Territory  in 
which  the  same  is  located. 

"No  general  rule  can  be  ailoptcd 
in  regard  to  this  matter.  Kach 
case  must  rest  upon  the  showing 
filed  in  support  tliercof. 

"The  previous  holding  of  this 
department,  expressed  in   the  cir- 


cular approved  March  21,  1S92,  as 
follows,  viz  : 

"  '  This  Act  does  not  con- 
template the  a]>propriation  for 
reservoir  purpO'^es  of  natural  lakes 
that  are  already  the  source  of 
water  supply,  nor  thed  unniingof 
rivers  so  that  the  adjacent  coun- 
try is  overflowe<i,'  is  hereby  over- 
ruled and  set  afiide. 

2.  "By  section  21  of  the  Act  it 
will  be  seen  that  the  approval  of 
a  map  of  a  canal,  ditrh  or  reser- 
voir does  not  necessarily  carry 
with  it  a  right  to  the  land  50  feet 
on  each  side,  the  approval  of  the 
department  granting  only  such 
right  of  way  as  the  law  provides. 
The  width  necessary  for  construc- 
tion, maintenance  and  care  of  a 
canal,  ditch  or  reservoir  is  not  <lc- 
termined. 

3.  ", Ml  persons  settling  on  the 
puhliclands  to  which  riglit  of  way 
has  attached  for  a  canal,  tlitch  or 
reservoir  take  the  same  subject  to 
such  right  of  way,  and  at  the  full 
aiea  of  the  subdivision  entered, 
there  being  no  authority  to  make 
deductions  in  such  cases. 

4.  "Canals,  ditches  or  reser- 
voirs lyingpartly  upon  unsurvestd 
land  can  be  appr.)vi'd  if  the  appli- 
cation and  accompanying  maps 
an<l  j)apL'rs  conform  to  lluse  regu- 
lations, but  till- approval  will  only 
relate  to  that  i)nrtiou  traversing 
the  snrveyerl  hinds. 

5.  "Any  incorporated  company 


496 


DITCH    AND    CANAL   COMPANIES. 


[§309 


The  rights  of  way  over  State  or  private  lands  may  be  ac- 
quired by  these  companies  by  legislative  grants,  by  purchase, 
or  by  the  power  vested  in  those  companies  of  eminent  domain 
by  means  of  special  condemnation  proceedings.     But  as  these 


desiring  to  obtain  the  benefits  of 
the  law  is  required  to  file  the  fol- 
lowing papers  and  maps  with  the 
register  of  the  land  district  in 
which  the  canal,  ditch  or  reservoir 
is  to  be  located,  who  will  forward 
them  to  the  General  Land  Office, 
where,  after  examination,  they 
will  be  submitted  to  the  Secretary 
of  the  Interior  with  recommenda- 
tions as  to  their  approval: 

''First. — A  copy  of  its  articles  of 
incorporation,  duly  certified  to  by 
the  proper  officer  of  the  company, 
under  its  corporate  seal. 

"Second.— A  copy  of  the  State 
or  Territorial  law  under  which  the 
company  was  organized  (when  or- 
ganized under  State  or  Territorial 
law),  with  certificate  of  the  Gov- 
ernor or  Secretary  of  the  State  or 
Territory  that  the  same  is  the  ex- 
isting law. 

"  Third. — When  said  law  directs 
that  the  articles  of  association  or 
other  papers  connected  with  the 
organization  be  filed  with  any 
State  or  Territorial  officer,  the 
certificate  of  such  officer  that  the 
same  have  been  filed  according  to 
law,  with  the  date  of  the  filing 
thereof. 

"Fourth. — When  a  company  is 
operating  in  a  State  or  Territory 
other  than  that  in  which  it  is  in- 
corporated the  certificate  of  the 
proper  officer  of  the  State  or  Ter- 
ritory is  required  that  it  has  com- 
plied with  the  laws  of  that  State 
or    Territory    governing    foreign 


corporations  to  the  extent  re- 
quired to  entitle  the  company  to 
operate  in  such  State  or  Territory. 
"Fifth.— '^he  official  statement, 
under  the  seal  of  the  company,  of 
the  proper  officer  that  the  or- 
ganization has  been  completed; 
that  the  company  is  fully  author- 
ized to  proceed  with  construction 
according  to  the  existing  law  of 
the  State  or  Territory,  and  that  the 
copy  of  the  articles  filed  is  true 
and  correct. 

(A  form  for  such  statement  is 
given.) 

"Sixth. — .\  true  list,  signed  by 
the  president,  under  the  seal  of 
the  company,  showing  the  names 
and  designations  of  its  officers  at 
the  date  of  the  filing  of  the  proofs. 
(Form  given.) 

"Seventh.  —  A  copy  of  the 
company's  title  or  right  to  appro- 
priate the  water  needed  for  its 
canals,  ditches  and  reservoirs,  cer- 
tified as  required  by  the  Stale  or 
Territorial  laws.  If  the  miner's 
inch  is  the  unit  used  in  such  title 
its  equivalent  in  cubic  feet  per  sec- 
ond must  be  stated. 

"Eighth. — A  copy  of  the  State 
or  Territorial  laws,  water-rights 
and  irrigation,  with  the  certificate 
of  the  Governor  or  Secretary  of 
the  State  or  Territory  that  the 
same  is  the  existing  law. 

"■Ninth. — A  statement  of  the 
amount  of  water  flowing  in  the 
stream  supplying  the  canal,  ditch 
or  reservoir  at  the  point  of  diver- 


§309,310]        DITCH    AND    CANAL    COMPANIES. 


4U7 


proceedings  are  somewhat  unlike  in  the  different  States  and 
Territories  tliey  will  be  discussed  under  their  proper  heads  in 
Part  Second  of  this  volume.' 

§310.  Power  of  Acquiriiii:  Water  Ki:;hts  h.v  Appnipria- 
tioii. — These  irrigation  companies  have  the  power  of  acquir- 
ing exclusive  rights  to  water  of  the  streams  or  lakes  or  other 
sources  of  supply,  and  of  storing  and  conducting  it  to  the 
place  where  it  is  to  be  applied  for  irrigation  or  other  bene- 
ficial purposes  by  means  of  ditches,  canals  or  other  works. 
There  are  several  methods  by  which  these  rights  to  water 
may  be  acquired.  One  is  by  the  appropriation  of  the  water, 
either  in  the  individual  or  corporate  names. ^  These  appro- 
priations, of  course,  under  the  general  rule  of  the  arid  region, 
if  they  are  prior  in  time,  have  the  superior  right.  But  if 
other  rights  have  vested  in   and   to  the   waters  of  a  certain 


sion  or  damming  during  the  pre- 
ceding year  or  years.  For  this 
purpose  it  will  be  necessary  to 
give  ihe  maximum,  minimum  and 
average  monthly  flow  in  cubic  feet 
per  second, and  the  average  annual 
flow.  All  available  data  as  to  the 
flow  is  required.  The  method  of 
measurement  or  estimate  by  which 
these  results  have  been  obtained 
must  be  fully  stated. 

'^  Tenth. — Maps,  field  notes  and 
other  papers  as  hereinafter  re- 
quired. 

^'Eleventh. — If  certified  copies 
of  the  existing  laws  regarding  cor- 
porations and  irrigation  and  of 
new  laws  as  pa.ssed  from  time  to 
time  be  forwarded  to  this  office  by 
the  Governor  of  the  State  or  Ter- 
ritory, the  applicant  may  file,  in 
lieu  of  the  requirements  of  the 
second  and  eighth  subdivisions  of 
this  paragraph,  a  certificate  of  the 
Governor  or  Secretary  of  State 
that   no  change   has    been    made 


since  a  given  date,  not  later 
than  that  of  the  laws  last  for- 
warded. 

6.  "Individuals  or  associations 
of  individuals  making  applications 
for  right  of  way  are  required  to 
file  the  information  called  for  in 
the  si'venth,  eighth,  ninth  and 
tenth  sections  of  the  previous 
paragraph.  .Association  of  indi- 
viduals must  in  addition  file  their 
articles  of  association;  if  there  be 
none,  the  fact  must  be  slated  over 
the  signature  of  each  number  of 
the  association." 

Specific  rules  are  then  laid  down 
as  to  the  surveys,  maps,  field 
notes,  affidavits  and  other  papers 
required.  .Mso  forms  for  "  tlue 
proofs  "  an<l  verification  of  maps 
of  right  of  way  for  canals,  ditches 
and  reservoirs  arc  given. 

•  See  I'art  Second  for  Statutory 
Enactments. 

-See  Ante  Section  155. 


498  DITCH   AND    CANAL    COMPANIES.        [§  310,  311 

stream  or  lake,  prior  to  that  of  the  company's  rights,  its  ap- 
propriation is  subsequent  and  subject  to  all  those  vested 
rights.^  Identically  the  same  rules  apply  as  govern  appro- 
priations between  private  individuals.  A  ditch  company  di- 
verting water  for  the  general  purpose  of  irrigation,  cannot,  by 
any  provisions  of  its  by-laws,  rules  or  regulations,  exempt  it- 
self or  its  stock  holders  from  the  operations  of  the  law  govern- 
ing in  respect  to  priority  of  appropriation . 

§  311.  Same — Authorities. — The  question  recently  came 
up  in  a  case  decided  by  the  Supreme  Court  of  Colorado,  the 
case  of  Combs  vs.  Agricultural  Ditch  Company,^  in  which 
the  defendant,  a  corporation,  offered  to  introduce  in  evidence 
certain  of  its  by-laws,  in  order  to  show  that  it  was  under  no 
obligations  to  furnish  water  to  plaintiff,  who  had  applied  for 
a  writ  of  mandamus  to  compel  the  defendant  to  do  so.  The 
by-laws  were  as  follows:  "  First,  no  water  shall  be  sold  from 
the  company's  ditch  except  to  stockholders.  Second,  the 
price  of  water  shall  always  be  as  low  as  is  consistent  with  the 
permanent  maintenance  of  the  ditch.  Third,  no  cash  divi- 
dends shall  be  declared  on  the  stock  of  the  company."  And 
the  Supreme  Court  said:  "Such  testimony,  if  it  had  been 
admitted,  would  not  have  been  controlling.  A  ditch  com- 
pany diverting  water  from  a  natural  stream  for  general  pur- 
poses of  irrigation  cannot  by  any  provisions  or  declarations  of 
its  by-laws,  rules  or  regulations  exempt  itself  or  its  stock- 
holders from  the  operations  of  the  State  constitution.  The 
unappropriated  waters  of  every  natural  stream  belong  to  the 
public,  and  are  subject  to  appropriation  by  the  people  to  ben- 
eficial use.  Priority  of  appropriation  to  actual  beneficial  use, 
and  not  mere  ownership  of  stock  in  a  ditch  company,  gives 
the  better  right  to  such  use.  Individuals  may  organize  a 
company  either  by  or  without  incorporation,  for  the  construc- 
tion of  an  irrigating  ditch,  and  may  b}^  such  means  divert  the 
unappropriated  waters  of  a  natural  stream.  Thej^  may  pro- 
vide that  their  several  interests  in  such  enterprise  shall  be 
represented  by  shares  of  stock.     But  neither  the  company  nor 

1  See  Aute  Sections  173-1S4.     2  17  Colo.  146;  28  Pac.   Rep.  966. 


§311,312]         DITCH    AND    CANAL    COMl'ANIE.^ 


■499 


any  stockholder  of  the  company  can  thus  withhokl  the  water 
from  beneficial  use.  nor  reserve  it  for  the  future  use  of  junior 
appropriators  to  the  prejudice  of  prior  appropriators,  nor  to 
the  exclusion  of  those  who  in  the  meantime  may  undertake, 
in  good  faith,  to  make  a  valid  appropriation  thereof."' 

§  31*2.  Same— Power  of  Aniuiriiii?  Water-Kij^hls  hy  Leiris- 
lative  (irailts. — Another  method  by  which  water-rights  may 
be  acquired  by  these  companies  isby  special  legislative  grants. 
There  is  no  doubt  that  a  State  legislature  has  the  right  to 
grant  to  individuals  and  corporations  the  exclusive  right  to 
the  use  of  waters  within  a  certain  tract  of  country,  with  two 
limitations,  however.  First,  the  rights  granted  must  be  in 
waters  flowing  over  the  lands  owned  by  the  State  or  Territory 
granting  them;  and  second,  they  must  be  subject  to  all  prior 
or  existing  vested  rights.  In  regard  to  the  first  limitation,  it 
is  based  upon  the  plain  principle  that  a  legislature  of  a  State 
cannot  grant  a  thing  that  the  State  does  not  own.  If  the 
thing  granted  is  not  in  the  grantor,  no  right  passes  to  the 
grantee.- 


1  See  also  Wheeler  vs.  Northern 
Colo.  Irr.  Co.,  lo  Colo.  582;  17  Pac. 
Rep.  487,  where  the  Court  held 
that  under  the  constitution  of  the 
vState  of  Colorado  (Art.  16,  vSec- 
tions  5-8),  declaring  unappropri- 
ated water  of  a  natural  stream 
"public"  property,  subject  to  ap- 
propriation for  the  "use  of  the 
people"  free  of  charge,  the  dis- 
tributor of  water  to  consumers  for 
hire,  not  being  the  proprietor  of 
water  unappropriated  by  it,  a 
demand  of  $10  per  acre,  in  ad- 
vance, for  "the  right  to  receive 
and  use  water"  from  its  canal  is 
in  violation  of  the  constitutional 
right  to  the  use  of  unappropriated 
water  free  of  charge. 

But  see  Tarmers  High  Line  Co. 
vs.  vSouthworth,  13  Colo,  in;  21 
I'ac.  Rep.  102H. 


McFadden  vs.  Board,  74  Cal. 
571;  16  Pac.  Rep.  397,  where  the 
Supreme  Court  of  California  held 
that:  A  corporation  organized 
for  the  purpose  of  supplying  water 
for  the  use  of  the  owners  and  oc- 
cupants of  the  land  within  a  par- 
ticular district  may  adopt  by-laws 
limiting  the  right  to  use  the 
waters  of  the  corporation,  ex- 
clusively to  its  own  stockholders 
on  lands  owned  by  theni. 

Also  see  Wyatt  vs.  Larimer  and 
Weld  Iron  Co.,  1  Colo.  Apj).  4S0; 
29  Pac.  Rep.  906. 

'■iNew  Orleans  vs.  Tniled  Slates, 
10  Peters  662;  Polk  vs.  Wen- 
dell, 5  Wheat.  292;  Sampeyreac 
vs.  United  Stales,  7  Peters,  222; 
Mud  Creek  Ir.  Co.  vs.  Vivian,  74 
Texas,  170,  11  S.  W.  Rep.  1078. 


500  DITCH    AND    CANAL    COMPANIES.  [pl3,  314 

§  313.  Same — Contiuuetl. — Regarding  the  second  proposi- 
tion stated  above,  that  all  grants  bj'  any  State  Legislature 
must  be  subject  to  all  existing   vested   rights,  it  can  be  said: 
If  the  waters  had  been  appropriated  prior  to  the  grant,  the 
grantee  can  only  take  subject  to  the  prior  appropriator's  rights. 
In  the  arid  west  the  running  waters  are  open  to  appropriation 
by  all  persons,  and  no  State  or  Territorial  legislature  has  the 
power  to  enact  laws  to  permit  an  irrigation  company  to  con- 
trol or  manage  the  water  of  any  part  within  its  jurisdiction,  in 
disregard  of  the  rights  of  prior  appropriators.     Upon  this  sub- 
ject the  Supreme  Court  of  Utah,   in   the  case  of  Munroe  vs. 
Ivie,^  said:     "  Water  is  something  that  the  appellants  could 
not  control  in  any  other  way  than  by  appropriation.     The^^ 
could  not  go  and  dig  ditches  and  bring  water  down  and  let  it 
run  to  waste.     If  thej^  failed  to  appropriate  it,  any  stranger 
could  appropriate  it,  and  it  was  not  necessary  that  such  stranger 
should  be  a  member  of  the  irrigating  companj-,  nor  could  such 
company  injure  or  trample  upon  his  rights.     This  is  a  free 
country  and  the  lands  are  open  to  all,  and  the  appropriation 
of  the  water  is  open  to  all  and  the  legislature  cannot  pass  any 
law  that  will  put  it  into  the  power  of  an  irrigating  company  to 
control  and  manage  the  waters  of  any  part  of  the  Territory, 
regardless  of  the  rights  of  parties.     Nor  will  the   Court  allow 
irrigating  companies  to  become  engines  of  oppression." 

There  are  two  other  methods  by  which  an  irrigation  com- 
pany can  acquire  rights  to  water,  and  these  are  first,  by  pur- 
chase, concerning  which  subject  we  have  treated  suflSciently 
in  a  previous  chapter;^  and  second,  in  some  of  the  States  and 
Territories  there  are  legislative  provisions  giving  irrigation 
companies  the  power  to  acquire  water  rights  by  special  con- 
demnation proceedings.  This  right,  however,  is  not  allowed 
in  all  the  States  and  Territories,  as  will  be  seen  in  Part 
Second  of  this  work,  where  the  entire  subject  will  be  dis- 
cussed.^ 

IV.  Duties  of  Ditcli  and  (Jansil  Companies. 

§  311.  Construction  of  Works  by  Ditch  Companies. — It  is 

the   dut}"  of  air  irrigation    companies    in    building   ditches, 

1  2  Utah,  535.        2  See  Ante  Sections  264-270.       •  See  Part  Second. 


§314,315j       DiTru   ano  rANM.  .-.^ipaniks.  501 

canals,  aqueducts,  rtr^,ervoir>  aiui  other  works,  to  so  construct 
them  that  so  far  as  human  roresi-ht  can  reasonal)lv  determine 
the  lives  and  property  of  the  people  living  below  them  will  he 
safe  from  breakage  and  overflow.  Where  a  company  con- 
structs a  ditch  which  passes  over  the  land  of  others  it  is 
bound  to  construct  it  and  use  it  so  as  not  to  injure  those  lands 
regardless  of  the  question  as  to  who  has  the  older  right  or 
title;  and  if,  through  any  fault  or  neglect  of  the  owner  of  the 
ditch  in  not  properly  constructing,  managing  and  repairing 
the  ditch,  the  water  overflows  or  breaks  through  the  banks, 
and  destroys  or  damages  the  lands  of  others,  either  by  wash- 
ing away  the  crops  or  soil,  or  covering  the  land  with  sand  or 
debris,  the  owner  of  the  ditch  is  liable  for  such  injury.'  How- 
ever, the  owners  of  the  ditch  or  canal  may  not  be  held  liable 
for  what  is  known  as  an  act  of  God,  unless  the  acts  of  the 
owners  are  combined  with  it  in  such  a  manner  as  to  render 
him  liable. - 


§  315.  Same.— Autliorilies  (liscusstnl.— This  subject  is  dis- 
cussed in  a  very  able  manner  by  the  Mr.  Justice  Thornton, 
in  rendering  the  opinion  of  the  Supreme  Court  of  California 
in  the  case  of  Chicester  vs.  Consol.  Ditch  Co.,  supra,  in  which 
he  says:  "No  one  is  responsible  for  that  which  is  merely 
the  Act  of  God  or  inevitable  accident.  But  when  human 
agency  is  combined  with  it  and  neglect  occurs  in  the  employ- 
ment of  such  agency,  a  liability  for  damages  results  from  such 
neglect.     Such  is  the  rule  laid  down  and  applied   in    Pulack 

1  Richardson  vs.  Kicr,  34  Cal.  triiisic,  but  always  relative  to 
63;  Campbell  vs.  B.  R.  &  A. W.  etc.  some  circiiinstaucc  of  time,  jilace 
Co.,  35  Cal.  6S3.  or  person."  Uroom's  Ki'Kil  Max- 
Negligence  is  defined  as  the  inis,  329. 
"omission  to  do  something  which  See  also  Polock  vs.  I'iocljc.  ^5 
a  reasonable  man,  gnided  hy  Cal.  416;  Turner  vs.  Tuolnmne  \V. 
those  consiflcrations  which  ordi-  Co.,  25  Cal.  3qS;  Proprietor  of 
narily  regulate  the  conrluct  of  Lakes  and  Canals  vs.  Nashua  Ky. 
human  affairs  would  do  or  doing  Co.,  lo  Cush.  385;  Perry  vs.  Wor- 
something  which  a  prudent  ami  cesler,  6  (iray,  544. 
rea.sonable  man  would  not  «lo;  -Chicester  vs.  Consolidated 
moreover  it  is  not  absolute  or  in-  Ditih  Co..  59  Cal.  203. 


502  DITCH   AND    CANAL   COMPANIES.  [§  315 

VS.  Pioche,  35  Cal.  416.  'The  expression  (the  expression 
referred  to  is  that  comprised  in  the  words,  'act  of  God')  ex- 
cludes the  idea  of  human  agency,  and  if  it  appears  that  a  given 
loss  has  happened  in  any  way  through  the  intervention  of  man 
it  cannot  be  held  to  b  e  the  act  of  God ,  but  must  be  regarded  as 
the  act  of  nian.'^  The  learned  author  (Broom)  just  referred 
to  states  the  rule  thus:  'The  act  of  God  signifies,  in  legal 
phraseology,  any  inevitable  accident  occurring  without  the 
intervention  of  man,  and  may,  indeed,  be  considered  to  mean 
something  in  opposition  to  the  act  of  man,  as  storms,  tempests 
and  lightning.  The  above  maxim  may,  therefore,  be  para- 
phrased and  explained  as  follows:  It  would  be  unreasonable 
that  those  things  which  are  inevitable  by  the  act  of  God, 
which  no  industry  can  avoid,  nor  policy  can  prevent,  should 
be  construed  to  the  prejudice  of  au}^  person  in  whom  there 
has  been  laches.''-'  In  the  case  under  consideration  it  is  con- 
tended on  behalf  of  defendant  that  the  damage  sued  for  was 
caused  by  the  act  of  God.  If  this  were  so  no  case  was  made 
out  which  should  have  gone  to  thejur}-.  To  this  it  was  re- 
plied that  the  agenc}'  of  the  defendant  concurred  in  causing 
the  injury  complained  of  in  which  the  defendant  was  negli- 
gent, and  therefore  it  was  responsible.  *  *  *  Xhe  injury 
complained  of  occurred  in  a  season  of  high  water  caused  by 
the  melting  of  the  snow  on  the  mountains  above.  The  over- 
flow so  caused  is  periodical,  and  is  anticipated  by  all  persons 
inhabiting  the  region  where  the  alleged  damage  occurred. 
The  obligation  rested  on  defendant  to  keep  the  banks  of  its 
canal  in  repair.  It  was  bound  to  use  ordinary  diligence  for 
this  purpose.  The  diligence  required,  however,  must  be 
commensurate  with  the  duty  and  the  duty  is  that  ordinarily 
employed  by  a  prudent  business  man  when  dealing  with  his 
own  affairs  under  the  circumstances  which  surround  him  and 
call  his  mind  and  energy  into  action. 

"If  the  accumulation  of  sand  in  the  defendant's  ditch  was 

1  Citing   Polack    vs.    Pioche,    35  559,    and    cases     cited;     Broom's 

Cal.  423,  per  Sanderson,  J.,  deliv-  Legal  Maxims,  Actus  dei  neniine 

ering  the  opinion  of    the    court.  Jacit  injuriani,  pages  227,  228. 

See   cases   cited  in   the    opinion;  2  Broom's  Legal  Maxims,  pages 

Wharton  on  Negligence,   ^  ^  553,  227,  228. 


§315] 


DITCH    AND    CANAL    COM  1' AN  IKS 


r)<l3 


such  as  to  render  it  probable  that  tlie  periodical  overflow- 
would  by  its  action  wash  out  the  sand  and  thus  damage  the 
land  of  plaintiff  it  was  then  the  duty  of  defendant  to  use 
all  the  means  which  an  ordinarily  prudent  business  man 
would  employ  under  the  circumstances  to  prevent  it.  The 
sand  might  have  beeii  removed  from  the  ditch  and  deposited 
where  the  water  would  not  reach  it  during  the  period  of  over- 
flow referred  to  above.  Ordinary  prudence  would  have  dic- 
tated such  a  course  to  prevent  injury  to  the  property  of 
another.  As  before  stated,  the  obligation  rested  upon  the 
defendant  to  exercise  the  diligence  in  the  use  and  manage- 
ment of  its  ditch  which  a  prudent  man  would  ordinarily  em- 
ploy under  the  circumstances  where  his  own  interests  were  to 
be  affected."^ 


1  See  also  Greely  Irr.  Co.  vs. 
House,  14  Colo.  549;  24  Pac.  Rep. 
329,  where  the  facts  were  : 
Defendants  permitted  the  water 
to  overflow  the  banks  of  their 
ditch  and  flood  plaintiff's  land, 
though  they  had  been  warned 
that  the  ditch  was  running  too 
full  and  that  the  water  was  in 
danger  of  escaping  unless  the 
flov.-  was  diminished.  After  this 
warning  the  superintendent,  at 
the  request  of  one  of  the  trustees 
of  the  company,  raised  the  head- 
gates  and  increased  the  flow. 
Held,  that  defendants  were  liable 
under  Gen.  St.  Colo.  §  g  312,  1728, 
1733.  requiring  the  owners  of 
ditches  and  canals  to  keep  them 
in  good  condition,  so  as  to  pre- 
vent the  escape  of  water  to  ad- 
jacent property.  .And  also  the 
Court  held  that:  Defenrlant'slia- 
bilit}^  arises  from  their  failure  to 
exercise  ordinary  care  in  prevent- 
ing the  escape  of  the  water;  and 
that  defendants  cannot  avoid  the 
consequence  of  their  own  negli- 
gence on  the   plea    that   g()])hers 


burrowed  the  banks,  and  that 
therefore  the  overflow  was  the 
result  of  unavoidable  accident. 

O'Comier  vs.  North  Trucker 
Ditch  Co.,  17  Nev.  245;  30  Pac. 
Rep.  8S2. 

Also  case  of  McCarty  vs.  Boise 
City  Canal  Co.  (Idaho),  10  Pac. 
Rep.  623,  where  it  was  held  that  a 
person  owning  a  ditch  from  which 
water  escapes  upon  the  premises 
of  the  adjoining  land  owner  and 
allows  such  water  to  continue  to 
escape  from  his  ditch  after  notice, 
without  any  effort  to  prevent  the 
same,  cannot  escape  liability  for 
damage  done  thereby  on  tlu- 
ground  that  the  adjoining  land 
owner  might,  at  a  slight  expense, 
have  prevented  any  damage  by 
digging  a  ditch  on  his  land  tliat 
would  have  conducteil  said  water 
off  his  premises. 

See  Catlin  Canal  Co.  vs.  Hest 
(Colo.),  31  Pac.  Rep.  39I,  where  it 
was  held  tl;.il  where  defendant 
])ermitted  a  l^reak  in  his  ditch  to 
remain  unrepaired  for  three 
weeks,    wliereby    plaintiff's    land 


504  DITCH    AND    CANAL   COMPANIES.  [§316 

§316.  Same. — Duty  Jis  ('ommon  Carrier. — The  question 
has  arisen  recently  upon  the  point  as  to  whether  a  canal  com- 
pany organized  for  the  purpose  of  acquiring  water-rights  and 
furnishing  water  to  consumers  is  a  common  carrier  or  not. 
The  Colorado  Court  of  Appeals,  in  the  case  of  Wyatt  vs. 
Larimer  &  Weld  Irr.  Co..^  held  thatr  The  liability  of  a 
company  for  failing  to  supply  a  certain  volume  of  water  to 
the  holders  of  water-rights  according  to  contract  cannot  be 
determined  on  the  theory  that  the  company  is  a  common  car- 
rier, where  the  rights  in  question  were  acquired  from  the 
company  after  its  appropriation  of  the  water  in  its  canal  from 
a  public  stream.  And  Mr.  Justice  Reed  in  delivering  the 
opinion  of  the  Court  upon  the  subject  in  question  said:  "  In  a 
case  like  the  present  the  facts  and  conditions  stated  in  the 
complaint  divest  the  appellee  of  every  legal  element  necessary 
to  constitute  it  a  common  carrier.  Take  the  earliest  definition 
of  a  '  common  carrier  '  and  we  have,  '  to  render  a  person  liable 
as  a  common  carrier  he  must  exercise  the  business  of  carrying 
as  a  public  employment,  and  must  undertake  to  carry  goods 
for  all  persons  indiscriminately,  and  hold  himself  out  as  ready 
to  engage  in  the  transportation  of  goods  for  him  as  a  business.' 
Coggs  vs.  Bernard,  2  Ivd.  Raym.  909;  Ingate  vs.  Christie,  3 
Car.  &  K.  61;  Chit.  Carr.  15.  Adopted  and  recognized  as 
correct  in  i  Kent,  Com.  p.  498,  §40;  Story  Bailm.  §495;  Sat- 
terly  vs.  Groat,  i  Wend.  272,  Citizens  Bank  vs.  Nantuckett 
Steamboat  Co.,  2  Story,  17— and  generally  in  all  subsequent 
American  decisions.  Anderson's  Law. Diet.;  'Common  Carrier: 
One  who  undertakes,  for  hire  or  reward,  to  transport  the 
goods  of  such  as  choose  to  employ  him,  from  place  to  place.' 
See  Dwight  vs.  Brewster,  i  Pick.  53:  'If  the  carrier  be  em- 
ployed in  carrying  for  one  or  a  definite  number  of  persons, 
by  way  of  special  undertaking,  he  is  only  a  private  carrier.' 
Redf.  Car.  §  19.  These  definitions  are  so  elementary  that 
they  would  not  be  stated  except  for  purposes  of  ilhistration, 
to  show   that   in    the  case  presented  the    corporation    is  not 


was  overflowed,  such  conduct  was  l  i  Colo.  App.  480;  29   Pac.   Rep. 

negligence  per  se,  and  defendant      906. 
was  liable. 


§316]  DITCH    AM)    .'ANAL    C)MI'ANIi:s.  505 

brought  within  the  definition  in  ;uiy  rcspL-.n  oi  ciurt  a  '  com- 
mon '  or  'private'  carrier,  comini;  nearer  the  defirition  of 
private  than  '  common  "  carrier,  but  lacking  several  indispen- 
sable elements  of  either.  In  order  to  constitute  a  carrier  of 
either  class  (i)  the  goods  or  thing  to  he  carried  must  be  the 
property  of  the  bailor;  (2)  the  thing  must  be  delivered  by  the 
bailor  to  the  carrier  to  be  transported;  (3)  the  carrier  must 
transport  and  deliver  to  the  consignee  the  identical  goods 
delivered  to  him  for  transportation;  (4)  a  person  who  con- 
tracts to  transfer  and  deliver  to  another,  at  a  given  place,  a 
certain  portion  of  a  common  lot  of  material,  to  be  separated 
from  it  at  the  place  of  the  consumer,  to  which  the  consumer 
had  no  title  prior  to  transportation  and  delivery,  is  in  no  legal 
sense  a  carrier,  but  a  vendor  of  the  commodity." 

But  this  case  was  again  appealed  to  the  Supreme  Court  of 
that  State  and  the  decision  of  the  Court  of  Appeals  reversed,* 
but  it  was  upon  the  theory  that  the  status  of  the  defendant 
could  not  affect  the  rights  of  the  parties  which  were  to  be 
measured  and  determined  by  the  construction  of  the  contracts 
between  the  parties;  and  that  the  duties  of  the  company 
would  be  the  same  to  plaintiffs  whether  that  duty  was  to  fur- 
nish water  under  their  contract  as  proprietor  or  as  a  carrier  of 
water.  The  Court  said:  "The  decision  by  the  Court  of  Ap- 
peals in  this  case  was  rendered  by  a  divided  court.  We  are 
unable  to  see  wherein  the  discussion  by  the  learned  Judge 
writing  the  majority  opinion  touching  the  constitutional 
status  of  irrigation  companies  in  this  State  was  essential  to 
the  decision  of  the  question  involved  in  the  case;  but,  inas- 
much as  the  views  expressed  in  that  opinion  are  so  at  variance 
with  numerous  decisions  of  this  Court,  we  feel  impelled  to 
express  our  disapproval  thereof,  and  our  adherence  to  the 
doctrine  heretofore  announced  by  this  C<nirt  in  relation  to  the 
status  of  canal  companies  organized  for  the  purpose  of  carry- 
ing water  for  general  purposes  of  irrigation.  We  adhere  to 
the  doctrine  that  such  a  canal  company  is  not  the  proprietor 
of  the  water  diverted  by  it,  but  that  '  it  must  be  regarded  as 
an  intermediate  agency  existing  for   the    jjurpose  of  aiding 

l(Colo.)  33  I'ac.  ki-p.  \.\.\. 


506  DITCH    AND    CANAL    COMPANIES.         [§316,317 

consumers  in  the  exercise  of  their  constitutional  rights,  as 
well  as  a  private  enterprise  prosecuted  for  the  benefit  of  its 
owners.'  ^  The  appellants  allege  that  by  the  terms  of  their 
contracts,  when  the  compan^^  shall  have  outstanding  water- 
right  contracts  sufficient  to  cover  the  amount  of  water  that 
the  compan3'"s  canal  is  able  to  furnish,  the  right  of  the  com- 
pany to  enter  into  further  contracts  is  at  an  end;  and  that 
such  limit  has  been  reached.  The  company  insists  that  it 
has  the  right  to  dispose  of  water-rights  up  to  the  estimated 
capacity  of  its  canal  to  carr}-  water.  The  rights  of  the  re- 
spective parties  are  therefore  to  be  measured  and  determined 
b}'  the  construction  of  the  contracts  in  question;  and  the  con- 
troversy, as  above  stated,  involves  only  their  contractual 
rights.  The  status  of  the  defendant  companj^  could  in  no 
aspect  affect  these  rights.  Its  duty  to  these  plaintiffs  would 
be  the  same  whether  that  duty  was  to  furnish  water  under 
their  contracts  as  proprietor  or  carrier  of  water. ' ' 

It  is  clear  from  the  above  that  the  Court  did  not  hold  the 
status  of  the  company  to  be  that  of  a  '  common  carrier  '  as 
that  term  is  known  in  its  strict  legal  sense,  but  more  in  the 
sense  of  a  private  carrier,  whose  duties  were  measured  and 
determined  b}'  the  construction  of  the  contracts  made  between 
it  and  the  consumer  of  the  water. 

§  317.  Same.— Duty  of  Ditch  Company  to  Furnish  Water 
to  Consumers. — One  of  the  duties  that  devolves  upon  irriga- 
tion companies  organized  for  the  purpose  of  furnishing  water 
to  consumers  is  to  furnish  the  water  to  all  actual  bona  fide 
consumers  making  application  therefor  and  tendering  the 
proper  charges,  provided  of  course  the  company  has  the  water 
to  spare.  In  a  recent  case  in  Colorado  it  was  held  that  a 
ditch  company  carrying  water  for  general  purposes  of  irriga- 
tion cannot  arbitrarily^  refuse  to  supply  an  actual  bona  fide  con- 
sumer.^    And    the   Court   said   that:     "A   refusal  to  supply 

1  Citing    Wheeler  vs.  Irrigation  i6    Colo.    6i;   26    Pac.    Rep.    313; 

Co.,   10  Colo.    582;   17   Pac.    Rep.  Combs  vs.  Ditch  Co.,  17  Colo.  146; 

487;  Reservoir  Co.  vs.  Southworth,  28  Pac.  Rep.  966. 

13  Colo,  iii;   21   Pac.   Rep.    1028;  2  Combs  vs.    Agricultural  Ditch 

Strickler  vs.  Cit}'  of  Colo.    Spgs.,  Co.,  17  Colo.  146;  28  Pac.  Rep.  966. 


§317,318]        DITCH    AND    CANAL    COMPANIES.  507 

water  by  the  carrier  to  be  justifiable  must  rest  upon  somethiiii;; 
more  substantial  than  the  mere  will  of  the  carrier."  ' 

In  a  California  case,  McCreary  vs.  Beaudry,-  the  Court  said 
upon  the  subject:  "  It  appears  sufficiently  clear  that  appel- 
lant had  appropriated  water  for  distribution  and  sale,  and  that 
he  had  acquired  and  was  exercising  the  right  to  collect  rates 
from  the  inhabitants  of  the  city  of  Los  Angeles  for  the  use  of 
it;  and  the  use  of  all  water  appropriated  for  sale,  rental  or  dis- 
tribution is  declared  by  the  Constitution  to  be  a  public  use; 
and  the  right  to  collect  rates  or  compensation  for  the  use  of 
water  to  the  inhabitants  of  any  city  is  a  franchise  which  can- 
not be  exercised  except  by  authority  of  and  in  the  manner 
prescribed  by  law.  (Const.  Art.  XIV.  >  Whenever  water  is 
appropriated  for  distribution  and  sale  the  public  has  a  right 
to  use  it.  That  is,  each  member  of  the  community  by  pay- 
ing the  rate  fixed  for  supplying  it  has  a  right  to  use  a  reason- 
able quantity  of  it  in  a  reasonable  manner.  Water  appropri- 
ated for  distribution  and  sale  is  ipso  facto  devoted  to  a  public 
use,  which  is  inconsistent  with  the  right  of  the  person  so  appro- 
priating it  to  exercise  the  same  control  over  it  that  he  might 
have  exercised  if  he  had  never  so  appropriated  it." 

And  it  has  been  repeatedly  held  that  where  a  ditch  company 
disregards  this  duty  of  furnishing  water  to  bona  fide  con- 
sumers under  the  circumstances  above  stated  that  mandamus  is 
the  proper  remedy  to  compel  the  company  to  furnish  the  water.' 

There  are  other  duties  imposed  upon  these  irrigation  com- 
panies by  statutory  enactments  which  will  be  determined  in 
Part  Second  of  this  volume. 

A\  Lialu'lilies  ol"  Ditcli  :ind  (  anal  ('oinpaiii«'s. 

§  :n8.  Liabilities  of  Coiiiimiiies  in  (ieiicral.  -The  ninih 
section  of  the  Act  of  Congress  of  July  26,  1S66,  provides: 
"  But  whenever  any   person    in  the  construction  of  any  ditch 

1  See  also  Golden  Canal  Co.  vs.  McCreary  vs.  lk-au.lr>  ,  M7  Cal.  12..; 

Bright,  8  Colo.    144;   6  Pac.  Rt-j).  7   1'"^.    Rep.    264;    South  Houhlcr 

J42.  \)\\x\\  Co.  vs.  MarfoU.  15  Colo.  302; 

267  Cal.  120;  7  Pac.   Rep.  2f.4.  25    Pac.   Rt-p.     5<M;    Wheek-r    vs. 

3 Combs   vs.    Agricultural  Ditch  Northern    Colo.    Ir.    Co..   n.  Colo. 

Co.,  17  Colo.  142;  2S  Pac.  Rep.  966;  5«2;  '7  l'«'^-  R^^P-  J^?- 


508  DITCH    AND    CANAL   COMPANIES.        [§318,319 

or  canal  injures  or  damages  the  possession  of  any  settler  on 
the  public  domain  the  party  committing  such  injur}'  shall 
be  liable  to  the  party  injured  for  such  injury  or  damage." 
This  section  certainly  fixes  the  liability  of  the  ditch  com- 
panies as  far  as  they  can  be  fixed  b}^  Congressional  act  gov- 
erning the  lands  and  waters  of  the  public  domain.  Also 
there  are  legislative  enactments  in  the  respective  States  and 
Territories  fixing  the  liabilities  of  the  companies  for  faulty 
construction  and  negligence  in  other  respects  whereby  inju- 
ries result.^ 

§  319.  Companies  Liability  for  Injuries  to  Stockholders' 
Rights. — Irrigation  corporations  formed  for  maintaining 
water  ditches,  keeping  them  in  repair  and  controlling  and 
dividing  the  water  between  the  several  stockholders  are 
bound  to  perform  the  duties  prescribed  in  the  certificate  of 
incorporation,  and  for  any  neglect  or  failure  to  properly  per- 
form its  duty  in  this  respect  it  is  liable  to  any  stockholder 
who  is  injured  thereby  to  the  extent  of  the  damages  suffered 
by  him.  So  also  where  the  injury  to  a  stockholder  was  occa- 
sioned by  other  stockholders  above  his  land  diverting  more 
water  than  th'ey  were  entitled  to,  under  the  terms  of  the  in- 
corporation the  company  itself  is  liable  for  the  injuries  sus- 
tained by  him.  And  it  is  also  held  that  the  corporation  can- 
not relieve  itself  from  responsibility  by  pursuing  a  practice 
at  variance  with  its  agreement  as  created  by  the  articles  of 
incorporation  without  the  consent  of  all  the  stockholders,  and 
that  an}'  stockholder  not  assenting  thereto  will  not  be  bound 
by  any  custom  which  the  officers  of  the  incorporation  might 
adopt  in  contravention  of  its  agreement  to  protect  the  rights 
of  the  several  stockholders. 

In  a  case  decided  by  the  Supreme  Court  of  Nevada  ^  this 
subject  was  discussed  at  some  length  by  Mr.  Justice  Hawley, 
and  in  the  course  of  the  opinion  of  the  Court  rendered  by  him 
he  observed:  "  The  stated  objects  of  the  corporation,  as  ex- 
pressed in  the  certificate  and  the  stipulation  in  the  deed, 
clearly  define  the  duties  imposed  upon  the  corporation.     By 

1  See  Part  Second.  Ditch   Co.,    17  Nev.    245;   30  Pac. 

2  O'Connor    vs.    North   Truckee       Rep.  882. 


§319]  DITCH    AND    CANAL    COMPANIES.  5H*J 

the  terms  and  conditious  thereof  the  corporation  is  bound  lo 
keep  the  main  ditch  supplied  with  water  and  to  regulate  and 
divide  its  use  among  the  several  stockholders  in  accordance 
with  their  respective  interests,  and  it  must  necessarily  follow 
that  for  any  neglect  or  fiiilure  to  properly  discharge  its  ilnty 
in  this  respect  it  would  be  liable  to  the  stockholder  who  is 
injured  thereby  to  the  extent  of  the  damages  suffered  by  him. 
"  Recognizing  this  to  be  its  duty  the  trustees  of  the  cor- 
poration in  the  month  of  January,  1878,  unanimously  'Re- 
solved, That  the  trustees  have  gauges  pn  pared  for  outlet  of 
proper  quantities  of  water  to  each  stockholder,  and  that  the 
trustees  employ  a  man  during  the  irrigating  season  to  super- 
intend and  regulate  the  use  of  water;  that  every  stockholder 
be  credited  each  season  at  a  value  per  share  to  be  regulated 
by  the  trustees,  according  to  the  amount  owned  by  said  stock- 
holder, and  *  *  *  that  trustees  be  empowered  and  in- 
structed to  embody  the  sense  of  this  resolution  in  action,  and 
use  all  possible  means  to  prevent  any  stockholder  from  using 
more  water  than  he  owns  without  paying  for  it." 

"  The  corporation  could  not  in  opposition  to  the  articles  of 
incorporation,  the  trust  deed  and  this  resolution  relieve  itself 
from  responsibility  by  pursuing  a  practice  at  variance  there- 
with without  the  consent  of  all  the  stockholders,  and  any 
stockholder  not  assenting  thereto  would  not  be  bound  by  any 
custom  which  the  officers  of  the  corporation  might  adopt  in 
contravention  of  its  agreement  to  protect  the  rights  of  the 
several  stockholders." 

The  Court  therefore  held  in  tlie  above  case  that  the  instru- 
ments referred  to  created  a  contract  between  the  stockholder 
and  the  corporation,  and  that  the  corporation  was  liable  to 
any  stockholder  fojr  any  injury  caused  by  the  excessive  diver- 
sion of  water  by  the  other  stockholders.' 

INewall    vs.    Hill,    2    Met.    i«i;  1-iiiley   vs.   Simpson,    .•    /.al..  .u». 

Goodwin  vs.  Gilbert,  9  Mass.  510;  .v,2;  7,  Wash.  Real  I'rop.  622. 

Nugent   vs.    Riley,     1     Mel.     117;  It  is  perfectly  ekar  that  in  the 

Maule  vs.  Weaver,  7  I'enn.  St.  329;  rase  in  hand  there  is  a  sti])nlatioM 

Clapham    vs.    MoK'le,    i    vSev.   iSS'r  "'"'  aKreenieiil.  as  distiiiKiiishecI 

Shepherd's    Touchstone,    52.   122;  from    a    con<lition.   in    the    deed, 

Huff  vs.    Nickerson,    27   Me.   i<)r>;  ui.on  the  hreadi   of  wiiiihan  nc- 

lioii  lies.     2  I'ar.   on  Cont..  526-7. 


CHAPTER  XI. 
Legal  Remedies. 


I.   REMEDIES   IN   GENERAL. 
Section. — 

320.  Contents  of  chapter. 
32T.  An  actionable  injur}'  to  water- 
rights. 

322.  Legal  and  equitable  relief  in 

same  action. 

323.  Same. — Rule  in  California. 

II.    REMEDIES   AT   LAW. 

324.  Actions  for   damages  caused 

by  ditches. 

325.  Same. — Degree  of  negligence 

necessary  to  create  liability 
for  damages. 

326.  Damages  to  prior  appropria- 

tor   by  unlawful   diversion. 

327.  Same. — Parties  to   an   action 

for  damages. 

328.  Damages  to  riparian  owners 

for  unlawful  diversion. 


III.    EQUITABLE   RELIEF. 
Section.— 

329.  Injunction   where   no  actual 

damages  are  shown. 

330.  Riparian   proprietor's    rights 

to   injunction  for  unlawful 
diversion. 
331    Same. — Continued. 

332.  Appropriator's    right    to    in- 

junction for  unlawful  diver- 
sion. 

333.  Nuisance — Equity    will     re- 

strain when. 

334.  Trespass. — Equity     will     re- 

strain when. 

335.  Mandamus. — Action    will  lie 

for  when. 

336.  Action  to  quiet  title. 

337.  Equity   has   power  to  deter- 

mine extent  of  right. 


I.  Remedies  in  General. 

§  320.  Coutents  of  Chapter.— In  the  previous  chapters  of 
this  work  we  have  set  forth  the  rights  of  the  parties  as  ac- 
quired by  the  various  methods  in  and  to  the  waters  of  streams 
and  lakes,  and  also  those  rights  acquired  to  water  from  un- 
derground sources.  And  now,  in  general,  it  can  be  said  that 
such  being  the  rights  of  the  appropriator  or  of  the  riparian 
proprietor,  as  the  case  maj^  be,  any  material  interference  with 
those  rights,  acquired  either  with  the  water  itself  or  with  the 
ditch,  canal,  well,  reservoir  or  other  structure,  by  anyone  not 


§320,321]  LEGAL    REMEDIES.  511 

entitled  to  commit  any  such  act  an  action  will  lie,  and  suit- 
able remedies  may  be  obtained  both  at  law  and  in  equity.  If 
the  persons  or  company  constructinj^  the  works  for  diverting 
the  waters  of  the  stream  or  the  reservoir  for  storing  the  water 
should  construct  those  works  negligently  or  carelessly,  or 
without  due  regard  to  the  solidity  of  the  structures  or  the 
safety  of  the  property  rights  of  those  below;  and  if  after- 
wards those  structures  should  break  away  and  thereby  cause 
damages  the  persons  or  company  owning  such  structures 
will  be  liable  to  all  persons  in  damago  for  the  injures  so 
caused. 

The  present  chapter  will  be  devoted,  first,  to  a  discussion  of 
the  remedies  at  law;  and  second,  equitable  remedies. 

§  321.  An  Adionablo    Injury   to  Watcr-Uiuhts. —Where 

the  act  complained  of  is  committed  under  a  claim  of  right 
which  if  allowed  to  continue  for  a  certain  length  of  time 
would  ripen  into  an  adverse  right  and  deprive  a  person  of  his 
propert)',  he  is  not  only  entitled  to  an  action  for  the  vindica- 
tion of  his  right,  but  also  for  its  preservation.  This  is  espe- 
cially' true  of  actions  for  the  diversion  of  water,  where  there 
is  a  clear  violation  of  an  established  right  and  a  threatened 
continuance  of  such  violation.^  In  such  cases  it  is  not  neces- 
sary to  show  actual  damages  in  order  that  the  injury  be  an  ac- 
tionable one.  That  there  may  be  an  invasion  of  a  person's 
right  to  water  which  will  justify  an  action  without  showing 
actual  damage  cannot  be  questioned.  But  in  applying  this 
doctrine  the  authorities  hold  a  distinction  must  be  made  be- 
tween those  uses  of  water  which  are  the  exercise  of  the 
riparian  proprietor's  natural  right  and  those  which  are  not. 
Such  a  proprietor  has  a  right  in  the  arid  west  to  use  the  water 

1  Goddard    on    Ivaseinciits,     423,  N.J.   Htj.  343;  Coining  vs.  Tioy  1. 

424;  Angell  and   Ames  on  Water-  &  N.  F.,   34  naih.  491;   40   N.  Y. 

Courses,  135;    Barnes   vs.  Sabron,  191 ;  39  Harb.  326;  Crosby   &  Sons 

10  Nev.  247;  Parker  vs.  Criswold,  vs.  Li^ljlowlcr,  3  I%<|.  Cases(L.  R.), 

17  Conn.  302-5;  vStcin  vs.  lUirdcn,  296;  Lyon  vs.  McLauj^hlin.  32  Vt. 

24    Ala.    148;    Webl)   vs.    Portland  425;    Kerr    on     Injumtions.     22b, 

Mfj<.  Co.,    3    Sumner,    197;    Hols-  393;    Angell    on      Walir-Courses. 

man  vs.   Boiling  Spgs.    B.  Co.,   14  449;  High  »>n    Injunelions.  ji  45<>- 


512  LEGAL    REMEDIES.  [§  321,  322 

of  a  stream  for  the  purpose  of  irrigation  as  an  incident  to  his 
ownership  of  the  land.  The  right  is  not  acquired  by  use. 
The  only  limitation  is  that  the  riparian  owner  must  so  use  the 
water  as  to  cause  no  actual  material  damage  to  another.  On 
the  other  hand,  no  one  proprietor  has  any  right  to  divert  in 
the  technical  sense  any  portion  of  the  water  permanently  from 
another  so  that  it  either  does  not  return  to  the  stream  at  all  or 
not  until  it  has  passed  the  land  of  him  below.  Such  diver- 
sion would  be  a  clear  violation  of  a  right,  and  if  continued 
adversely  for  the  requisite  period  would  ripen  into  a  title.  An 
action  will  therefore  lie  for  an  injury  to  the  right,  without 
proving  actual  damage  or  showing  that  the  riparian  proprietor 
was  making  any  practical  use  of  the  water.  But  so  long  as 
one  proprietor  had  enough  for  his  lawful  practical  uses  it 
ought  not  and  cannot  be  permitted  to  debar  other  riparian 
proprietors  from  applying  so  much  water  as  they  profitably 
can  to  agricultural  purposes.  It  follows,  therefore,  that  the 
one  proprietor  gains  no  right  by  his  using  the  water  for  irri- 
gation and  the  others  lose  no  right. 

§  322.  Legal  and  Ei^uitable  lielief  iu  Same  Action.— In  an 

early  Montana  case,^  the  Supreme  Court  of  that  Territory 
held  that  cases  in  equity,  in  which  equitable  relief  is  de- 
manded, and  actions  at  law,  in  which  an  equitable  defense  is 
made,  cannot  be  tried  by  a  jury  at  law,  but  the  decree  must 
be  rendered  by  the  judge  sitting  as  a  chancellor  in  a  Court  of 
Chancery.  Also,  in  a  later  case,^  the  same  Court  held  that 
legal  and  equitable  relief  cannot  be  obtained  in  the  same  pro- 
ceedings, and  a  judgment  for  damages  for  the  diversion  of 
water  and  which  perpetually  enjoins  parties  from  using  the 
water  is  irregular  and  void.  In  rendering  the  opinion  of  the 
latter  case,  Murphy.  J.,  said:  "The  proposition  that  law 
and  equity  cannot  be  blended  in  the  same  suit  or  action  under 
our  organic  act  was  elaborately  discussed  and  definitely  settled 
in  the  case  of  Gallagher  et  al.  vs.  Basey  et  al.,  by  this  Court." 
But  in  the  case  of  Basey  vs.  Gallagher,  decided  by  the  Su- 

1  Gallagher   vs.  Basey,    i    Mout.  2  Woolman      vs.      Garringer,     i 

458.  Mont.  535. 


§  322,  323J  LEGAL    UEMKDIES.  513 

preme  Court  of  the  United  States  in  1S74.  Mr.  Justice  Field, 
in  reudering  the  opinion  of  the  Court  upon  the  question  in- 
volved, said  ;  "If  the  remedy  sought  be  a  ley;al  one  a  jury 
is  essential  unless  waved  by  stipulation  of  the  parties;  but  if 
the  remedy  sought  be  equitable,  the  court  is  not  bound  to 
call  a  jury,  and  if  it  does  call  one  it  is  only  for  the  purpose  of 
enlightening  its  conscience  and  not  to  control  its  judgment. 
The  decree  which  it  must  render  upon  the  law  and  the  facts 
must  proceed  from  its  own  judgment  respecting  them  and  not 
from  the  judgment  of  others.  Sofneliiiic  in  the  sauw  action 
both  legal  and  equitable  relief  may  be  nought,  as,  for  example, 
zvhere  datnages  are  claimed  for  a  past  diversion  of  -water  and  an 
injioiction  prayed  against  its  diversion  in  the  future.  Upon  the 
question  of  damages  a  jury  would  be  required;  but  upon  the 
propriety  of  an  injunction  the  action  of  the  Court  alone  could 
be  invoked.  The  formal  distinction  in  the  pleadings  and 
modes  of  procedure  are  abolished;  but  the  essential  distinction 
between  law  and  equity  is  not  changed.  *  *  *"  Referring 
to  the  statute  of  Montana  regulating  civil  cases  the  court  said: 
"  That  statute  is  substantially  a  copy  of  the  statute  of  Cali- 
fornia as  it  existed  in  1851." 

§  3ti3.  Saiiii'.— lliile  in  ("alifoniia.— Under  the  statute  of 
California  and  of  those  States  and  Territories  following  the 
Code  of  Civil  procedure  of  that  State,  there  seems  to  be  now 
no  question  but  that  equitable  and  legal  relief  may  be  sought 
and  obtained  in  the  same  action.  In  the  case  of  Natonia 
Water  and  M.  Co.  vs.  Clarkin,'  Mr.  Chief  Justice  Field,  in 
rendering  the  opinion  of  the  Court  upon  this  subject,  said  : 
"  This  blending  of  an  action  at  law  with  a  petition  for  ancillary 
relief  to  the  equity  side  of  the  Court  is  admissible  under  our 
system  of  practice.  But  to  prevent  confusion  and  preserve 
the  simplicity  and  directness  requisite  in  the  averments  of  a 
complaint  in  an  action  at  law  the  grounds  of  equity  interposi- 
tion should  be  stated  subsequently  to,  and  distinct  from  those 
upon  which  the  judgment  at  law  is  sought.  It  would  be  the 
better  practice  in  such  case  to  commence  thai  jiortion  of  the 

1  14  CaL  54S.  See  al.so  late  <asr  of  Watli-rsoii  vs.  SaMunhi-hcrc  (Cal.) 
35  Pac.  432- 


514  LEGAL   REMEDIES.  [§323,324 

complaint  which  seeks  the  equitable  relief  with  the  form;  'and 
for  equitable  relief,  pending  the  above  action,  the  plaintiff 
further  represents;'  or,  'and,  for  a  further  cause  of  action  the 
plaintiff  represents.'  " 

In  a  very  recent  case,  decided  b}^  the  same  Court, ^  it  was 
held  that  a  complaint  in  an  action  to  quiet  title  to  water  flow- 
ing across  the  plaintiff's  land  and  to  enjoin  a  diversion  thereof, 
and  to  recover  damages  for  the  diversion,  which  states  a 
wrongful  diversion  of  the  water  of  the  stream  to  the  detriment 
of  the  plaintiff,  and  a  threatened  continuance  of  such  diversion 
is  sufficient  to  entitle  the  plaintiff  to  some  relief  and  is  not 
bad  on  demurrer.- 

II.  Remedies  at  Law. 

§  324.  Actions  for  Damages  Caused  hy  Ditclies.— A  ditch 
owner  is  liable  for  an  injury  caused  wautonl}^  or  by  gross  neg- 
ligence; but  he  is  not  liable  for  a  mere  accidental  injury  where 
no  negligence  is  shown.  And  the  general  rule  upon  the  sub- 
ject of  negligence  is  that  one  who  constructs  a  dam  or  ditch  for 
the  purpose  of  appropriating  water  is  bound  to  exercise  in  the 
construction  and  management  thereof  that  degree  of  care  and 
prudence  which  ordinarily  prudent  men  use  in  like  instances 
when  the  whole  risk  is  their  own.  Both  the  degree  and  fact 
of  prudence  must  depend  wholly  upon  the  circumstances  of 
each  particular  case.^ 

1  Hulstnan  vs.  Todd,  96  Cal.  228;  where  several  owners  of  the 
31  Pac.  Rep.  39.  stream  joined   as   plaintiffs  in  an 

2  It  was  held  in  the  case  of  Mil-  action  for  damages  for  diverting 
ler  vs.  Highland  Ditch  Company,  the  waters  of  a  stream,  and  for  an 
87  Cal.  430;  25  Pac.  Rep.  550,  that  injunction  to  restrain  the  defend- 
where  debris  is  deposited  upon  ants  from  further  diversion  there- 
the  lands  of  the  plaintiff  by  means  of.  The  complaint  was  held  bad  on 
of  different  ditches  constructed  b}-  demurrer,  both  for  misjoinder  of 
several  defendants  between  whom  parties  plaintiff,  and  for  a  mis- 
there  was  no  concert  of  action,  a  joinder  of  causes  of  action. 

joint  action  may  be  maintained  to  See  also  Barham  vs.   Hostetter, 

enjoin  them  all  from  continuing  67  Cal.  274;   Blaisdell  vs.  vStevens, 

the  wrong,  but  a  joint  judgment  14  Nev.  17;  33  Am.  Rep.  523. 

for  damages  in  such  cases  is  erro-  3  Hoffman  vs.  Tuolumne  Water 

neous  and  will  be  reversed.  Co.,    10   Cal.   412;    Wolff    vs.    St 

Also   see    case  of   Foreman  vs.  Louis    Ind.    W.    Co.,  10  Cal.  541; 

Boyle,  88  Cal.  290;  26  Pac.  Rep.  94,  Fraler  vs.    Seers  Union  W.  Co.,  12 


§324,325]  LEGAL    REMEDIES.  515 

Where  one  person  owns  a  ditch  which  passes  over  the  hind 
of  another  the  owner  is  bonnd  to  so  use  it  as  not  to  injure  the 
other's  land,  and  this  irrespective  of  the  question  as  to  which 
had  the  older  right  or  title:  and  if.  through  any  fault  or  neglect 
of  the  owner  in  not  properly  managing  and  keeping  his  ditch 
in  repair  the  water  overflowed  or  broke  through  the  banks 
and  destroyed  or  damaged  the  land  or  property  of  others, 
either  by  washing  away  the  soil  or  washing  away  other  prop- 
erty or  covering  the  soil  with  sand,  the  owner  of  the  ditch  is 
liable.i 

§  3'-ir).  Same— Doirret^  of  Net^litriMice  NCccssar.v  to  Civate 
Liability  for  l)ainai?es. — Negligence  is  defined  as  "  The 
omission  to  do  something  which  a  reasonable  man  guided  by 
those  considerations  which  ordinarily  regulate  the  conduct  of 
human  aflfairs  would  do,  or  doing  something  which  a  prudent 
and  reasonable  man  would  not  do;  moreover  it  is  not  absolute 
or  intrinsic,  but  always  relative  to  some  circumstances  of 
time,  place  or  person."  - 

As  Mr.  Justice  Sandersqn  said  upon  the  subject  of  liability 
of  a  ditch  owner,  in  delivering  the  opinion  in  the  case  of 
Richardson  vs.  Kier:-^  "  He  is  bound  to  keep  it  in  good  re- 
pair, so  that  the  water  will  not  overflow  or  break  through  its 
banks,  or  destro)-  or  damage  the  lands  of  other  parties;  and 
if,  through  any  fault  or  neglect  of  his  in  not  properly  manag- 
ing and  keeping  it  in  repair  the  water  does  overflow  or  break 

Cal.  555;  Rurbank  vs.  W.  Walker  charj^e  thai  the  plaintiff's  case  is 
R.  U.  Co.,  13  Nev.  431;  Turner  vs.  based  on  nej^lij^encc;  that  there  is 
Tuolumne  W.  Co.,  25  Cal.  398;  no  j)resuiiiption  that  it  was  unlaw- 
Richardson  vs.  Kier,  34  Cal.  63;  ful  to  float  loj^s;  and  that  the 
Campbell  vs.  Bear  River  Co.,  35  plaintiff  must  show  want  of  ordi- 
Cal.  679.  nary  care,  and  to  charj^je,  instead, 
1  Richardson  vs.  Kier,  34  Cal.  63.  that  plaintiff  should  recover  if  the 
In  the  case  of  Hopkins  vs.  Butte  lo}.(s  formed  a  gorj^e  obstructing 
&  M.  Commercial  Co.,  recently  the  naturnl'flow  of  the  strennj  and 
decided  by  the  Supreme  Court  of  the  gorge  was  suddenly  released, 
Montana,  33  Pac.  Rep.  H17,  which  causing  the  stream  to  overflow,  ns 
was  an  action  by  a  ri])arian  owner  the  latter  charge  practically  iy. 
against  one  engaged  in  floating  nores  the  (juestion  <»f  negligence, 
logs,  for  causing  an  overflow,  it  2  Hroom's  Legal  Maxims,  329. 
was  held  to  be  error  to  refuse  to  ^'3.1  Cal.  7.1. 


516  LEGAL   REMEDIES.  [§  325,  326 

through  the  banks  of  the  ditch  and  injure  the  lands  of  others 
either  by  washing  away  the  soil  or  covering  the  soil  with  sand, 
the  law  holds  him  responsible." 

But,  as  we  have  seen  in  previous  sections,  no  action  will  lie 
against  an  owner  of  a  ditch  or  reservoir  for  damages  resulting 
from  an  "act  of  God."  And  the  law  requires  in  the  con-, 
struction  and  repair  of  these  works,  necessary  for  the  diver- 
sion or  storage  of  water,  only  such  diligence  and  prudence  as 
would  be  employed  by  a  prudent  business  man  when  dealing 
with  his  own  affairs.^ 

§  326.  Damages  to  Prior  Appropriator  by  Unlawful  Di- 
version.— The  rights  of  the  prior  appropriator  being  fixed  bj^ 
the  nature  and  extent  of  his  appropriation,^  for  any  infringe- 
ment upon  those  rights  by  which  he  is  injured  an  action  will 
lie.  As  he  is  entitled  to  the  quantity  of  water  up  to  the  full  ex- 
tent of  his  appropriation, an  action  will  lie  for  damages^  for  an)- 
past  diversion  by  other  parties  by  which  his  rights  have  been 
substantially  injured.  Not  only  has  a  prior  appropriator  of 
water  a  right  to  recover  damans  where  his  rights  are  in- 
fringed upon  by  unlawful  diversion  by  others,  but  he  is  also 
entitled  to  recover  damages  for  injuries  caased  by  the  acts  of 
subsequent  appropriators  on  the  stream  above  in  erecting 
dams  or  other  obstructions  by  which  the  regularity  of  the  flow 
of  water  is  so  disturbed  as  to  cause  actual  injury.'* 

The  appropriator  cannot  maintain  an  action  upon   an  im- 
plied contract  for  the  value  of  the   water  or  for  the  price  of 

1  Ante  Sees.  314,  315.  -^  UnionWater  Co.vs.  Cran',  25  Cal 

In  the  recent  case  of  Jacobs  vs.  504;  Tuolumne  D.  Co.vs.  Chapman 

Lorenz,  decided  by  the  Supreme  8  Cal.   392;    Parke   vs.    Kilham,  8 

Court  of   California,  33  Pac.  Rep.  Cal.  77;  Weaver  vs.    Kureka  Lake 

119,  which  was  an  action  brought  Co.,    15    Cal.    271;    Foreman    vs. 

for    destroying    plaintiff's    ditch,  Boyle,  88  Cal.  290;  26  Pac.  Rep.  94; 

which     crossed     the    defendants'  Plulsman  vs.  Todd,  96  Cal.  228;  31 

mine,  the  fact  that  there  had  been  Pac.  Rep.  39;  Saint  vs.  Guerrerio 

locations    covering     part    of    the  (Colo.),  30  Pac.  Rep.  235. 

mine   before    the   ditch   was  con-  -i  Comer  vs.  Simpson,  7  Cal.  340; 

structed    being   immaterial  when  Phoenix  Water  Co.  vs.  Fletcher,  23 

the  defendants' title  was  not  con-  Cal.  481;    Natoma   Water   Co.  vs. 

nected  with  them.  McCoy,    23    Cal.    490;    Jerret    vs. 

".2  See  Ante  Sections  173-184.  Mahan,  20  Nev.  89.. 


§326,327]  LEGAL    REMEDIES.  517 

personal  propertj'  sold  and  delivered  against  a  person  who  has 
wrongfully  diverted  the  water  from  the  stream  above  the  head 
of  his  ditch.  His  legal  remedy  in  a  case  of  this  kind  is  an 
action  to  recover  damages  for  the  tort.'  In  an  action  to  re- 
cover damages  for  the  diversion  of  water  to  the  allegeil  injury 
of  plaintiff's  riparian  and  appropriated  water  riglits  by  means 
of  a  dam  constructed  by  defendants  it  may  be  shown  as  a  de- 
fense under  the  denial  of  injury  to  plaintiff  that  the  plaintiff 
participated  with  the  defendants  in  the  maintenance  of  the 
dam  and  the  diversion  of  the  water  as  a  tenant  in  common 
with  the  defendants  on  the  ground  that  one  who  consents  to 
an  act  which  occasions  him  loss  is  not  wronged  by  it.- 

§  3*27.  Same. — Parties  to  an  Action   for    Da  maizes.— The 

several  owners  of  the  water  of  a  stream  may  unite  as  plaintiffs 
in  an  action  to  restrain  a  diversion  of  the  waters  by  a  third 
person,  or  to  abate  an  obstruction  therein  as  a  nuisance;  but 
they  cannot  unite  in  an  action  for  damages,  for  as  to  the 
injury  suffered  there  is  no  communit}'  of  interest.-* 

It  is  a  well  settled  principle  of  law,  as  established  by  the 
general  authorities,  that  an  action  at  law  for  damages  cannot 
be  maintained  against  several  defendants  ivhcji  each  acted  in- 
dependently of  the  others  and  there  was  no  concert  or  unity  of 
design  between  them.  It  is  held  that  in  such  a  case  the  tort 
of  each  defendant  was  several   when  committed,   and  that  it 

1  Parks  C.  &  W.  Co.  vs.  Hoyt,  57  existence  of  such  deficieiicy  is  not 

Cal.  44.  «  provision  for  liquidated  damages 

2 Churchill   vs.  Bauniaii,  95  Cal.  such   as  will  prevent  recovery  of 

541;  30  Pac.  Rep.  770;  see  Brown's  other  damages  by  the  lessee  when 

Legal  Maxims,  Sec.  265;  Cooley  on  it  ai)])cars  that  the  deficiency  was 

Torts,  Second  Kdition,    187;  Lyon  the  result  of  the  les.sor's  failure  to 

vs.  Tallmadge,    i   Johns   Ch.   1S7;  repair  injuries  to  the  race  and  ilam 

Coswin  vs.  Ry.  Co.,  13  N.  Y.  49.  causeil  hy  an  unusual  freshet. 

In  the  case  of  Pengra  vs.  Whee-  •<  Foreman  vs.  Boyle,  8S  Cal.  290; 

ler,  34  Pac.  Rep.  354,  the  Supreme  26  Pac.    Rep.    94;    Bliss   on    Code 

Court  of  Oregon  held  that  a  clause  pleading,    Sec.    76;    I'.arham     vs. 

in  a  lease  of  a  water  power  to  the  Hostetter,  67   Cal.    274;    Blaisdell 

effect  that  in  default  of  a  sufTicient  vs.  Stephens,    14   Nev.   17;  3  Am. 

amount  of  water  the  lessor  .shall  Rej).    523;    Miller    vs.     Highland 

forfeit  a  pro  rata  ])r()portion  of  the  Ditch  Co..  H7  Cal.  430;  25  Par.  Rep. 

water  rents   accruing   duiing  the  550. 


518  LEGAL   REMEDIES.  [§  327 

does  not  become  joint  because  afterwards  its  consequences 
united  with  the  consequences  of  several  other  torts  committed 
by  other  persons.  If  it  were  otherwise,  the  authorities  hold, 
one  defendant  however  little  he  might  have  contributed  to  the 
injury  would  be  liable  for  all  the  injury  caused  by  the  wrong- 
ful acts  of  all  the  other  defendants,  and  he  would  have  no 
remedy  against  the  latter  because  no  contribution  can  be  en  - 
forced  between  tort-feasors.^ 

In  the  case  of  Blaisdell  vs.  Stevens, ^  decided  by  the  Su- 
preme Court  of  Nevada,  several  defendants  were  sued  "for 
wrongfully  flowing  waste  water  from  their  lands  to  the  injury 
of  plaintiff's  ditch,  and  for  an  injunction  to  restrain  such 
wrongful  flowing  of  waste  water."  It  appeared,  however, 
that  the  defendants  "own,  occupy  and  irrigate  separate  and 
distinct  tracts  or  parcels  of  land,  each  in  his  own  right;"  and 
they  moved  for  a  non-suit  upon  the  ground  that  it  did  not  ap- 
pear that  the  injury  complained  of  "was  the  result  of  the 
joint  or  concurrent  act  of  defendants."  The  trial  court  over- 
ruled the  motion,  and  on  appeal  the  Supreme  Court  of  Nevada 
held  that  the  non-suit  should  have  been  granted,  and  said  in 
its  opinion:  "The  general  principle  is  well  settled  that 
where  two  or  more  parties  act,  each  for  himself,  in  producing 
a  result  injurious  to  plaintiff"  they  cannot  be  held  jointly 
liable  for  the  acts  of  each  other."  On  rehearing,  however,  it 
was  held  that  the  injunction  against  defendants  was  proper; 
but  the  judgment,  so  far  as  it  awarded  damages,  was  reversed. 

But  in  the  Supreme  Court  of  California  in  the  case  of  Huls- 
man  vs.  Todd,=^  an  action  where  defendants  all  joined  in  a 
common  answer  denying  the  plaintiff's  title  and  alleged  that 
all  of  the  defendants  claimed  an  interest  in  the  waters  of  the 
stream  adverse  to  that  of  the  plaintiff,  by  virtue  of  an  appro- 
priation made  by  one  of  the  defendants  and  his  grantors  and 
where  it  appeared  that,  in  pursuance  of  said  claim  and/or  the 
several  benefit  of  himself  and  his  co-defendants  such  defendant 
entered  upon  the  stream  above  the  plaintiff's  land  and  diverted 

1  Chapman  vs.   Palmer,  77  N.  Y.  Gould  on  Waters,  Sec.  222;  Pom- 

51;   Little   Schuylkill    Navigation  eroy  on  Remedies,  Sec.  307,  308. 
Co.  vs.  Richards,  57  Penn  St.  182;  214  Nev.  17. 

Sellick    vs.    Hall,  47   Conn.    260;  3  96  Cal.  228;  31  Pac.  Rep.  39. 


§327,328]  LECiAL    REMEDIES.  519 

the  waters  of  the  stream  therefrom,  it  was  held  that  all  of  the 
defendants  are  jointly  liable  for  the  damages  resulting  from 
such  diversion,  and  the  fact  that  the  ditch  had  not  been  ex- 
tended to  the  land  of  one  of  the  defendants  is  immaterial  upon 
the  question  of  his  joint  liability.  And  Mr.  Justice  Belcher, 
in  rendering  the  opinion,  said  upon  this  point  referring  to  the 
cases  cited  above:  "  The  ca.ses  of  Miller  vs.  Highland  Ditch 
Co.,  87  Cal.  430,  22  Am.  St.  Rep.  254;  Blaisdell  vs.  Stephens, 
14  Nev.  17,  33  Am.  Rep.  523,  and  Foreman  vs.  Boyle,  88  Cal. 
290,"  are  not  in  point.  In  those  cases  it  was  held  that  an 
action  for  damages  cannot  be  maintained  against  several  de- 
fendants jointly,  'u'hen  each  acts  independently  of  the  others  and 
there  is  no  concert  or  unity  of  design  bcticeeii  them.  The  rule 
thus  stated  is  undoubtedly  correct,  but  it  is  not  applicable  to 
this  case.^ 

§  328.  DaniJis^es  to  Riparian  Owikmn  for  riihiwful  IMvcr- 
sion. — Damages  may  also  be  recovered  in  an  action  brought 
by  one  riparian  proprietor  against  another  fur  unlawfully  ap- 
propriating the  waters  of  a  stream  for  any  purpose-  as  well  as 
for  the  unlawful  diversion  of  the  water  by  any  trespasser. 

In  an  action  by  a  riparian  proprietor  to  restrain  the  diver- 
sion of  water  from  a  stream  adjoining  his  lands  and  to  recover 
damages  for  a  prior  diversion,  evidence  of  injuries  caused  by 
the  diversion  to  lands  of  the  plaintiff  not  bordering  upon  the 
stream  and  to  his  cattle  pastured  thereon,  is  inadmissible. 


•i 


1  See  Hilhnan  vs.  Newington,  stream  for  the  purpose  of  irriga- 
57  Cal.  56.  tion,   an  instruction    to  the   jury 

See  Carson  vs.  Wood,  10  Mont.  that  they  should  find  for  the  dc- 

500;    26   Pac.    Rep.   388,  where  it  feiidant  if  they  believed  that  he 

was  held  that  the  right  of  action  had  used  no  mure  ivater  than  -was 

for   damages   may   exist   for    tlie  necessary  for    that    purpose    is 

wrongful  diversion  of  water  dur-  erroneous,  for  by  it  the  jury  is  in 

ing  a   brief   time,    and   although  effect  told  that  the  defenciant  was 

such    diversion    was     not     inter-  entitled  to  <livert  an<l   use  all  of 

rupted.  '^''*^'  water  if  necessary   for   the  ir- 

2  See  Learned  vs.  Tangeman,  65  rigation  of  his  lands,  without  re- 
Cal.  334,  where  it  was  held  in  an  gard  to  tin-  necessilits  of  the 
action  by  one  riparian  proprietor  plaintiff. 

against    another    for    unlawfully  -^  Ik-inlen   vs.  I'resin.  C.   iS:.    Ir. 

appropriating    the      waters    of    a  Co  ,  <)«  Cal.  35. 


520  LEGAL   REMEDIES.  [§  329 

III.  Equitable  Relief. 

§  329.  Iiijmiction  Whei-e  no  Actiuil  Dtiiuages  are  Shown. 

— Where  the  act  complained  of  is  committed  tinder  a  claim  of 
right,  which  if  allowed  to  continue  for  a  certain  length  of 
time  would  ripen  into  an  adverse  title  and  deprive  the  plain- 
tiff of  his  property,  he  is  not  only  entitled  to  an  action  for 
the  vindication  of  his  right  but  also  for  its  preservation. 

In  actions  for  the  diversion  of  water,  where  there  is  a  clear 
violation  of  an  established  right  and  a  threatened  continuance 
of  such  violation,  it  is  not  necessary  to  show  actual  damages 
or  a  present  use  of  the  water  in  order  to  authorize  a  Court  to 
issue  an  injunction  and  make  it  perpetual.^  A  lower  riparian 
proprietor  is  not  required  to  show  any  actual  present  damage 
in  order  to  procure  an  injunction  to  restrain  a  diversion  of 
the  water.  It  is  sufficient  if  the  acts  are  such  as  if  continued 
might  ripen  into  a  right.-  As  was  said  in  the  case  of  Mott  vs. 
Ewiug  by  the  Supreme  Court  of  California^  "There  are  no 
damages  given  by  the  judgment  for  an  injunction.  As  to  the 
matter  of  finding  upon  the  question  of  the  nature  and  amount 
of  damages  and  injur}^  as  set  up  in  the  complaint  it  may  be 
said  that  if  the  facts  found  show  that  it  not  prevented  the  con- 
tinuous trespass  of  the  defendant  might  by  time  ripen  into  a 
right  adverse  to  the  plaintiff,  that  this  is  sufficient  to  entitle 
her  as  a  lower  riparian  proprietor  to  an  injunction.  When 
the  diversion,  as  in  this  case,  is  by  one  against  the  superior 
right  of  another,  and  to  the  extent  of  depriving  her  of  all  the 
water  to  which  she  is  entitled,   it  is  not  necessary  to  prove 

1  Brown  vs.  Ashley,  i6  Nev.  311;  Haggin,  69  Cal.  278;  Moore  vs.  C. 

II  Am.  &  Kng.  Enc.  of  Law,  855  h.  W.,  68  Cal.  154. 

and  note;  Wel)b  vs.  The  Portland  3  Crandall  vs.  Woods,  8  Cal.  136; 

Mfg.   Co.,  3  Sumn.  197;  Holsman  American  Co.  vs.  Bradford,  27  Cal. 

vs.  Boiling  Spring  B.  Co.,  14  N.  J.  360;      Gonld    on    Waters,    p  214; 

Ch.  343;  Corning  vs.  Troy,  I.  &  N.  Moore  vs.  Water  Works,   68  Cal. 

F.  Co.,   34  Barb.  491-2;   40  N.  Y.  146;  Stanford  vs.  Phelps,  71  Cal. 

191;    39  Barb.   326-7;    Crossley   &  249;    Heilbron  vs.    Canal   Co.^  75 

Sons  vs.  Lightowler,   3  Eq.  Cas.  Cal.  431;  7  Am.  St.  Rep.  183;  Conk- 

(L.  B.)  296-8;  Lyon  vs.  McLough-  ling  vs.  Pacific   Imp.   Co.,  87   Cal. 

lin,   32  Vt.   425;  Kerr  on  Injiinc-  296. 

tions,  393   (34);    226   (2);   Ang.  on  3  90  Cal.  237. 
Water-Courses,  Sec.  556;  Lux  vs. 


§329,330]  LEGAL    UEMKDIES.  521 

damages  to  entitle  her  to  an  injuuciiuu.  If  it  is  n.ii  nev<.»ai> 
to  prove  damages  it  is  unnecessary  to  find  them.  The  con- 
tinuous wrongful  diversion  of  the  water,  which  if  not  stopped 
might  ripen  into  a  right,  was  the  thing  from  which  injury  not 
capable  of  being  accurately  ascertained  might  in  the  future 
result,  and  it  was  this  which  was  sought  to  be  and  was  en- 
joined, as  it  appeared  from  the  findings  threatened  and  likely 
to  result.  The  plaintiff  had  the  right  to  the  use  and  enjoy- 
ment of  her  property,  and  that  is  sufficient  to  have  this  right 
protected  against  invasion  by  another."  ' 

^'i'M\.  Riparian  Proprietor's  Kii^ht  t(»  Injuiictioii  for 
Unlawful  Diversion. — Equity  by  means  of  an  injunction  af- 
fords to  a  riparian  proprietor  the  proper  remedy  against  the 
wrongful  diversion  or  obstruction  of  the  water  of  a  natural 
water-course.^  A  riparian  proprietor  owning  to  the  center  of 
the  stream  is  entitled  to  the  aid  of  equity  to  prevent  a  diver- 
sion of  the  waters  from  their  natural  chaimel  although  he 
may  have  made  no  use  of  the  water  himself  or  have  sustained 
but  small  pecuniary  damages;  and  this  is  so  although  the  par- 
ties diverting  the  water  may  be  subject  to  heavy  expense  if 
compelled  to  restore  the  water  to  its  original  channel.-'  As  we 
said  in  the  opinion  of  Wheatley  vs.  Chrisman,*  "The  neces- 
sities of  one  man 's  business  cannot  be  the  standard  of  another's 
right  in  a  thing  which  belongs  to  both.""  Also  a  riparian 
proprietor  is  entitled  to  an  injunction  to  restrain  IIk-  threat- 
ened   unlawful    diversion   of  the  waters  of  a  stream   flowing 

1  In  the  very  late  case  of  Spar-  rnioii  M.  &   M.    Co.    vs.    Daii)^- 

gur  vs.  Heard,  90  CaL  221;  27  Pac.  licr^,  7  Saw.  450. 

Rep.  198,  the  Court  held  that  in  -Lux    vs.   Ha^jjiu.   69  Cal.   J55; 

order  to  sustain  an  injunction  re-  Shively    vs.    Hume,     10   Ore.    76; 

straininj^  the  diversion   of    water  Weis  vs.  ()rc;^on    L   &  S.  Co..   13 

belonf^rinf^  to  the  plaintiff  it  is  not  Ore.  490;  11  I'ac.  Rep.  255. 

necessary  that  any  actual  daina^^e  '■*  Ibid.  .Xnj^cll  on  Water-Courses, 

by  reason  of  the  rlivcrsion  should  Sec.  135;  Could  on  Waters.  ^304, 

be  alleged  or  proven  or  found,  and  305;  High  on  Injunctions.  Sec.  795 

a  failure  to  find  upon  an  issue  as  and  authorities  cited, 

to  the  extent  of  actual  damage  is  ^2i  I'enn.  St.  302. 

immaterial    if     no    damages     are  "'See    alsti    Mott    vs.    I-lwing,    9«> 

granted.  Cnl.  231:  27  l'"'"-  K^l'-  '04- 


522  LEGAL    REMEDIES.  [§  330,  331 

through  his  land  without  first  establishing  his  right  at  law 
by  recovering  a  judgment  in  damages.^  So  also  a  riparian 
proprietor  is  entitled  to  restrain  the  unlawful  diversion  of  the 
waters  of  a  stream  adjoining  his  land,  although  the  injury 
caused  by  the  diversion  is  incapable  of  ascertainment  or  of 
being  estimated  in  damages.^ 

Upon  this  subject  Mr.  Justice  Temple,  in  rendering  the 
opinion  of  the  Supreme  Court  of  California  in  the  case  of 
Heilbron  vs.  Fowler  Switch  Canal  Co.,  supra,  said:  "  It  does 
not  follow,  because  the  injury  is  incapable  of  ascertainment  or 
of  being  computed  in  damages,  and  therefore  only  nominal 
damages  can  be  recovered,  that  it  is  trifling  or  inconsiderable. 
It  is  doubtful  if  it  can  be  properly  said  that  there  is  any  evi- 
dence in  the  case  which  tends  to  show  or  that  which  was 
offered  would  have  tended  to  show  that  the  injury  to  plaintiffs 
was  inconsiderable;  that  it  was  unascertainable,  and  in  that 
sense  inappreciable,  may  be  a  good  reason  why  an  injunction 
should  issue." 

§  331.  Same. — Continued. — But  where  it  is  not  shown  that 
the  injury  to  a  water-right  is  continuing  or  likely  to  be  con- 
tinued a  judgment  for  damages  may  be  sustained,  but  an  in- 
junction should  not  issue. -^  In  an  action  by  a  lower  riparian 
owner  to  restrain  the  diversion  of  an  upper  owner  of  the  waters 
of  a  stream  a  decree  ordering  that  the  whole  of  the  waters  be 
allowed  to  flow  to  plaintiffs  lands  in  the  natural  flow,  except 
a    given   number   of  inches,  is    erroneous,    since    defendant 

1  Lux  vs.  Haggin,  69  Cal.  265.  thereby  diverted  the  water  of  the 

2  Heilbron  vs.  Canal  Co.,  75  Cal.  stream  from  plaintiff's  ditch,  but 
426;  17  Pac.  Rep.  535;  Moore  vs.  did  not  aver  that  the  injury  was 
Clear  Lake  W.  Co.,  68  Cal.  150;  continuing  or  threatened  to  be 
Stanford  vs.  Felt,  71  Cal.  249;  continued  or  was  likely  to  be  con- 
Parke  vs.  Kilham,  8  Cal.  77;  68  tinned,  it  was  held  that  the  com- 
Am.  Dec.  310;  Ferrea  vs.  Knipe,  plaint  was  sufhcient  for  the  recov- 
28  Cal.  341;  87  Am.  Dec.  128.  ery  of  damages,  but  not  to  sustain 

3Coker  vs.  Simpson,  7  Cal.  340,  an  injunction;  audit  was  also  held 

where  the  complaint  alleged  that  that  the  writ  of  injunction  though 

the  defendant  had  dug  a  mining  remedial  must  be  based  upon  some 

ditch  above   one   previously  con-  equitable  circumstance, 
structed  by  the  plaintiffs  and  had 


§331]  LEciAL    UKMHDIES. 


)23 


would  thereby  be  deprived  of  any  part  of  the  water  lor  irri- 
gation or  other  necessary  purpose  as  riparian  proprietor.* 
The  diversion  from  a  water-course  will  not  be  restrained  at 
the  suit  of  one  who  owns  land  located  on  another  water-course 
to  which  the  former  is  an  occasional  tributary,  unless  such 
diversion  diminishes  the  quantity  of  water  which  would  othcr- 
wnse  have  flowed  into  the  other  water-course  by  a  natural 
channel  and  shortens  the  period  of  the  natural  flow:  and  it 
will  be  restrained  only  as  to  such  quantity  and  period. - 

It  is  not  necessary  in  order  to  maintain  an  action  lor  an  in- 
junction that  the  plaintiff"  should  be  the  owner  of  the  land, 
but  a  tenant  for  years  of  land  borderinj;  upon  a  natural  stream 
may  enjoin  the  unlawful  diversion  of  the  waters  thereof;  the 
injunction  necessarily  becoming  inoperative  at  the  termination 
of  his  estate.^ 

We  have  said  that  an  action  for  an  injunction  may  be  main- 
tained when  but  small  pecuniary  injuries  have  been  sustained. 
There  may  be  an  invasion  of  a  right  which  will  justify  an  ac- 
tion, although  actual  damage  is  not  shown,  but  a  distinction 
must  be  taken  between  those  uses  of  water  which  are  the  ex- 
ercise of  the  riparian  proprietor's  natural  rights  and  those 
which  are  not;  in  the  former  case  actual  damage  must  be 
sho\vn,  but  need  not  be  in  the  latter.^ 

In  an  action  to  enjoin  defendant  from  diverting  the  waters 
of  a  creek  the  complaint  alleged  that  the  plaintiff's  land  was 
valuable  for  producing  grain  by  irrigation;  that  plaintiff  and 
his  predecessors  had  appropriated  the  water  by  ditches,  and 
had  enjoyed  the  uninterrupted  use  till  defendant's  wrongful 
diversion;  and  that  all  the  waters   were   necessary  for  irrigat- 

1  Van   Bibber  vs.  Hilton.  84  Cal.       lan.ls  „f  the  plaintiff  not  honk-riiiK 

585;  24  Pac.  Rep.  308.  "1"'"  t'"-'  '^l'-'-'""'  ""''  ^"  '""  ":""'*-■ 

SCreiL'hton  vs.  Kaweah  C.  6^   Ir.  thereon  is  inadmissible,     lleinlen 

Co..  67  Cal.  221.  vs.  Fresno  C.  &  Ir.  Co..  68  Cal.  35- 

In  an  action  by  a  riparian  pro-  '^  Ileilbron  vs.  l-'owler  S.  C.  Co.. 

prietor  to   restrain   the  diversion  75  Cal.  426;  "7  I'a^'-  l^^'P-  534. 

of  the  water  of  a  stream  adjoining'  '  Inion  M.   it  M.  Co.  vs.  !).».,«- 

his  lands,  and  to  recover  .lamaKc.  be.K.    2    Saw.    250;    Ante   Seaiun 

for  a  prior  diversion,  evidence  of  32'- 
injuries  caused  by  the  diversion  to 


524  LEGAL    REMEDIES.  [§  331,  332 

ing  plaintiff's  land.  It  was  held  upon  the  above  facts  by  the 
Supreme  Court  of  Montana  that  the  complaint  was  sufficientlj'' 
traversed  b}-  an  answer  denying  on  information  and  belief 
plaintiff's  ownership  of  the  land,  and  denying  that  there  was 
a  creek  having  a  regular  and  continuous  flow  from  defendant's 
land  to  that  of  the  plaintiff's;  that  grain  could  be  grown  on 
the  land;  that  defendant  had  prevented  plaintiff  from  using 
the  waters  of  the  creek  to  which  he  was  entitled;  or  that 
plaintiff  or  bis  predecessors  were  ever  the  owners  of  all  the 
waters  of  the  creek,  or  had  ever  appropriated  the  same.^ 

§  332.  Ai)})ropriator's  Ri2,ht  to  Injuiictioii  for  Unlawt'ul 
Diversion. — The  diversion  of  a  water-course  or  of  water  from 
one  rightfully  entitled  to  the  use  thereof  is  a  private  nuis- 
ance.2  A  person  who  has  acquired  a  right  to  a  certain  amount 
of  water  flowing  in  a  stream  b}'  virtue  of  an  appropriation  of 
the  same  is  entitled  to  protection  against  acts  w^hich  materially 
diminish  the  quantity  of  the  water  to  which  he  is  entitled,  or 
materially  deteriorates  its  quality  to  such  a  degree  that  it  in- 
jures it  for  the  use  to  which  he  desires  to  apply  it.  Equity 
affords  the  appropriate  remedy  against  the  wrong-doer  by  way 
of  an  injunction  against  such  wrong. -''    But  whether  a  Court 

1  Raymond    vs.  Winsette    (Mon-  2  Park  vs.    Kilham,    8    Cal.    77; 

tana),  31  Pac.  Rep.  537.  Tuohimne  W.  Co.  vs.  Chapman,  8 

That  the  appropriator  of  water  Cal.  392. 

who  constructs  a  dam  across  the  ^Cole    Silver   Mg.    Co.    vs.  Vir- 

bed  of  a  stream  in  public  lands  for  ginia    Gold    Hill  \V.    Co.   i    Saw. 

the  purpose  of  raising  the  surface  470;    Tiiolumne     Water    Co.     vs. 

of  the  water  to  a  level  which  will  Chapman,    8    Cal.    392;    Phoenix 

cause  it  to  flow  into  his   ditch  or  Water  Co.  vs.  Fletcher,  23  Cal.  481; 

canal    does    not   thereby   acquire  Rupley   vs.    Welch,    23   Cal.   452; 

such  exclusive   right  in   the  bed  Moore  vs.  Clear  Lake  W.  W.  Co., 

and  banks   of  the  stream  as  en-  68  Cal.  146;  Lake  vs.  Tolles,  8Nev. 

titles  him  to  restrain  a  subsequent  285;   Barnes   vs.    Sabron,   10  Nev. 

appropriator  of  the  surplus  water  217;    Harris   vs.    Shontz,   i  Mont, 

from    tapping    the  stream    for  its  212;  Gallagher  vs.  Base}^   i  Mont, 

diversion  at  a  point  above  the  dam  457;  Barkley  vs.  Tieleke,  2  Mont, 

and  below  the  head  of  slack  water  59;  Fabian  vs.    Collins,    3    Mont 

was  held  to  be  the  rule  in  the  re-  215;    Schilling    vs.    Rominger,    4 

cent  case   of    Natoma    AVater    &  Colo.    100;  Keeney   vs.  Carillo,  2 

Mining    Co.  vs.    Hancock    et   al.  N.  M.  480;   Crane   vs.  Windsor,  2 

(Cal.),  35  Pac.  Rep.  334.  Utah,  248;  Riverside  Water  Co.  vs. 


§  332] 


LE(JAL    UKMIiMKS. 


of  equity  will  interfere  to  restrain  act<  claimed  to  be  injuriuus 
to  the  rights  of  a  prior  appropriator  of  water  will  depend  en- 
tirely upon  the  character  and  extent  of  the  injury  alleged, 
whether  it  is  irremediable  in  its  nature;  whether  an  action  at 
law  would  afford  an  adequate  remedy:  whether  the  i>arties  are 
able  to  respond  for  damages  resulting  from  the  injury,  and 
other  considerations  which  ordinarily  govern  a  Court  of 
equity  in  the  exercise  of  its  preventive  process  of  injunction.' 


Gage,  8q  Cal.  410;  26  Pac.  Rt-p. 
8S9. 

See  Roberts  vs.  Arthur,  15  Colo. 
456;  24  Pac.  Rep.  922,  where  it  was 
held  that  when  a  party  has  ac- 
quired a  prior  right  to  the  water 
of  a  natural  stream  by  a  valid  ap- 
propriation thereof  to  a  beneficial 
use  another  party  cannot  justifv 
an  interference  with  such  prior 
right  by  merely  showing  that  he 
is  wholly  dependent  ujion  the 
same  supply  for  water;  but  in  an 
equitable  proceeding  for  some 
purposes,  even  though  not  as  a 
bar  to  such  prior  right,  it  may  be 
proper  for  the  defendant  to  allege 
such  dependence  in  connection 
with  other  averments  of  the  an- 
swer; and  it  is  not  error  to  refuse- 
to  strike  out  such  matter  unless  it 
is  made  to  appear  that  its  reten- 
tion in  some  way  may  have  im- 
properly affected  the  final  decision 
of  the  cause. 

1  Atchison  vs.  I'eterson,  20  Wall. 

507. 

In  the  recent  case  of  Sparlin  vs. 
Gotch'  r  (Oregon),  31  Pac.  Re]> 
399,  the  facts  were  that  an  e(|ui- 
table  action  to  enjoin  rlcfen<lants 
from  stopping  the  natural  flow  of 
a  stream  which  had  its  source  in  a 
spring  on  defendant's  land,  it  aj)- 
pearcd  that  for  time  immemorial 
this  spring  harl  been  obstructed  by 


a  beaver  ilani  causing  a  i)ool  on 
defendant's  land  which  overflowed 
and  gave  plaintiff  his  water  sup- 
ply. One  of  the  defendants,  a 
lessee  of  the  other,  cut  the  dam  to 
drain  the  land,  but  repaired  it  on 
being  ordered  t..  do  so  by  his 
lessor.  t)n  complaint  of  the  plain- 
tiff that  his  water  supply  was  ob- 
structed the  dam  was  immediately 
cut  at  the  point  indicated  Ijv  the 
plaintiff,  the  exact  height  of  the 
original  dam.  It  was  held  by  the 
Court  that  the  natural  flow  of  the 
stream  was  not  obstructed,  and 
that  an  injunction   would  not  lie. 

See  also  Jerret  \s.  Mahan,  20 
Nev.  89. 

In  a  recent  case  decicled  bv  the 
Supreme  Court  of  ()regi)n.  Cole 
vs.  Logan,  33  Pac.  Rep.  56.S,  in 
which  an  action  was  brought  to 
enjoin  the  defendant  from  divert- 
ing the  water  from  a  certain  creek 
it  a])peared  from  the  testimony 
that  he  settled  ujtiiM  his  land  in 
1S70  and  obtained  a  j)ateiit  in 
1880,  and  in  the  meantime  had 
built  a  dam  and  conducted  the 
water  to  u  garden.  In  1S73  he 
conimence<l  a  new  ditch  extend- 
ing abmit  i\4  miles  to  a  point 
above  the  plaintiff's  dam  and  did 
not  comjilele  \intil  m  years  liilcr. 
Ilisonly  e.xcuse  for  delay  in  com- 
l)leling  the  extension  was  pccun- 


526  LEGAL    REMEDIES.  [§  333 

§  333.  Nuisimce— Etiiiity  will  Restrain,  When.— The  own- 
ers of  a  water  ditch  are  entitled  to  have  the  waters  flow  therein 
in  its  natural  state  when  they  claim  such  water  by  appropria- 
tion, and  its  pollution  or  its  unlawful  diversion  by  strangers 
is  a  private  nuisance,^  and  equity  will  restrain  the  continuance 
of  the  same.'^  A  private  person  may  maintain  an  action 
against  a  public  nuisance  if  it  is  especially  injurious  to  him  or 
his  property.^  A  party  who  continues  a  nuisance,  but  is  not 
the  original  creator  of  it,  is  entitled  to  notice  that  it  is  a 
nuisance,  and  a  request  must  be  made  that  it  may  be  abated 
before  an  action  will  lie  for  that  purpose,  unless  it  appear  that 
he  had  knowledge  of  its  hurtful  character.  Where  the  extent 
of  the  nuisance  is  increased  by  such  party  the  rule  is  other- 
wise.'* 

In  the  case  of  Grisby  vs.  Clear  Lake  Water  Co.,^  the  Court 

said  upon  this  subject:  "Of  course  the  plaintiff  cannot  re- 
cover damages  for  a  public  nuisance  so  far  as  the  injury  is  to 
the  public  only,  but  if  he  suffered  damage  peculiar  to  him- 
self, as  by  flooding  his  land  and  thereby  depriving  him  of  the 
use  of  it,  the  nuisance  is  to  that  extent  a  private  nuisance  as 
to  him,  for  which  he  may  recover  damages,  and  we  have  no 
doubt  that  the  facts  alleged  in  the  complaint,  if  proven,  are 
suflScient  to  enable  the  plaintiff  to  maintain  this  action  in  that 

respect."^ 

In  the  recent  case  of  the  City  of  Fresno  vs.  Fresno  Canal  & 
Irrigation  Co.,''  the  facts  were  that  the  city  brought  an  action 

iary  inabilit}'.     It  was   held   that  Blanc  vs.   Klumple,    29   Cal.    156; 

such  excuse  was  not  available,  and  Grisby  vs.  Clear  Lake  Water   Co., 

that    he    did    not     complete   the  40  Cal.  396. 

work  within  such  reasonable  time  -^  Grisby   vs.    Clear  Lake   Water 

as  to  enable  him  to  hold  the  rights  Co.,  40  Cal.  396;  see  also  Hudson 

acquired  under  the  original  ditch.  vs.  Doyle,  6  Cal.   loi;  Bear  River 

See     also    McPhail     vs.     Forney  Co.  vs.  Boles,  24  Cal.   354;  Court- 

(Wyo.)  35  Pac.  Rep.  773.  wright  vs.  Bear  River  Co.,  30  Cal. 

1  Crane  vs.  Winsor,  2  Utah  248;  573;  Blood  vs.  Light,  31  Cal.  115; 
Parke  vs.  Kilham,  8  Cal.  77;  Miss.  &  Mo.  Ry.  Co.  vs.  Ward,  2 
Tuolumne  W.  Co.  vs.  Chapman,  8  Black,  485. 

Cal.  392;  But  see  Union  M.   &  M.  5  40  Cal.  396,  406. 

Co.  vs.  Crary,  25  Cal.  504.  *!  Citing    Blanc  vs.    Klumpe,   29 

2  Ibid.  Cal.  157. 

3 The    Mining    Debris    Case,    9  ^(Cal.)  32  Pac.  Rep.  943. 

Sawyer,   441;    18   Fed.   Rep.    801; 


§333,334]  LKGAI.    REMEDIES. 


•  >!'< 


against  the  canal  company  to  enjoin  the  operatiou  .m  ii-.  ..nial 
along  one  of  plaintiff 's  streets  and  to  abate  it  as  a  nuisance. 
The  trial  Court  found  that  the  said  canal  could  be  constructed 
below  the  surface  of  the  street  and  covered  up  so  that  it  would 
not  be  an  obstruction  to  the  street,  and  rendered  judgment  in 
favor  of  the  plaintiff.  The  Supreme  Court  on  appeal  reversed 
the  judgment,  and  held  that  the  finding:  "  Said  canal,  where 
it  traverses  the  streets  of  said  cit^'  is  a  nuisance  per  jr,"  was 
inconsistent  with  the  finding  "  that  said  canal  can  be  con- 
structed below  the  surface  of  the  street  and  covered  up  in  such 
a  manner  that  the  surface  of  the  street  can  be  restored  to  its 
former  condition,  so  that  it  will  not  be  an  obstruction  to  the 
free  use  and  enjoyment  and  travel  of  said  street."' 

§  33-1:.  Trespass— Equ it. V  will  Itostniin  When.— The  foun- 
dation of  the  jurisdiction  in  a  Court  of  Equity  to  issue  an  in- 
junction in  the  aid  of  an  action  for  trespass  is  the  probability 
of  irreparable  injury;  the  inadequacy  of  pecuniary  compensa- 
tion or  the  prevention  of  a  multiplicity  of  suits.  It  is  not 
sufficient  that  the  complaint  alleges  that  the  injur}-  would  be 
irreparable.  The  plaintiff  must  affirmatively  show  how  and 
why  it  would  be  so,  otherwise  the  extraordinary  remedy  b>- 
injunction  ought  not  to  be  allowed.  An  injunction  will  not 
be  granted  to  restrain  a  trespass  unless  the  trespasser  is  insol- 
vent or  the  injury  irreparable  and  destructive  to  plaintiff's 
estate  to  its  very  nature  and  substance,  and  such  as  call  for 
immediate  relief.  There  must  be  something  particular  or 
special  for  which  a  Court  of  law  cannot  afford  adetjuate  re- 
lief.2 

ISee  also  People  vs.  Stevens,  62  1  Paijje,  97;  Cooper  vs.    Ilainiltoii, 

Cal.    209;  McCreary   vs.   Beaudry,  S  Blackfoot,  377;  Cowlcs  vs.  Shaw, 

67   Cal.  120;   7  Pac.  Rep.   264;  Mc-  2  Clark,  496;  Rankin  vs.  Charless. 

Menomy  vs.  Baud,  87  Cal.   134;  26  19  Mo.  490;  Malvaiiy  vs.  Kennedy, 

Pac.    Rep.   795;     Drew    vs.    Hicks  26   Penn.   44;  Schurnieir    vs.    St. 

(Cal  )  35  Pac.  Rep.  563.  Paul  Ry.  Co  ,  8  Minn.  113;  Whit- 

2Waldron  vs.  Marsh,  5  Cal.    119;  man  vs.  St.  Paul  Ry.  Co.,  8  Minn. 

Wells,  Parj<o  &  Co.  vs.  Dayton,  11  116;  Justices   vs.  Crosby,    5  Jones 

Nev.  169;  Riler  vs.  Patch,    12  Cal.  \\i\.   254;   Holster  vs.   Ciitiiline.    10 

499;  Branch  Turnpike  Co.  vs.  Sup-  Ind.     117;    Stewart    vs.     Chew,     \ 

ervi-sors  of  Yuba  Co.,  13   Cal.   190;  JMand  Ch.  .j.jo. 
New  York  Printinjj  Co.  vs.  Pitch, 


528  LEGAL    REMEDIES.  [§  335-337 

§  335.  Mandiimiis— When  Action  will  Lie.-— As  will  be 
seen  by  reference  to  a  previous  section  a  ditch  company- 
organized  for  the  purpose  of  furnishing  consumers  with 
water  for  beneficial  uses  is  bound  to  supply  the  demands  of 
bona  fide  customers  when  they  tender  the  proper  charges 
therefor,  when  the  water  can  be  spared  without  injury  to  the 
prior  rights  of  others.^  And  under  the  circumstances  above 
stated  the  authorities  hold  that  a  ditch  company  carrying  water 
for  general  purposes  cannot  arbitrarily  refuse  to  supply  an 
actual  bona  fide  consumer;  and  that  a  writ  of  mandamus  is  the 
appropriate  remedy  to  compel  the  delivery  of  water. ^ 

§  336.  Action  to  Quiet  Title.— An  action  will  lie  to  quiet 
title  to  a  water  right  acquired  by  appropriation  made  by  means 
of  a  dam  and  ditch;  and  to  the  full  flow  of  the  stream  to  the 
head  of  the  ditch.  And  a  complaint  alleging  an  appropriation  of 
the  water  by  plaintiff  for  irrigation  and  domestic  purposes,  and 
charging  an  adverse  entry  upon  the  stream  and  diversion  of 
the  water  by  defendants,  and  that  the  claim  of  the  defendants 
is  entirely  subject  to  plaintiff's  claim  and  title,  and  is  wholly 
invalid'and  without  right  as  against  the  appropriation  of  said 
water  by  plaintiff,  states  a  cause  of  action.  And  it  is  not 
necessary,  in  order  to  maintain  an  action  to  quiet  title  to  a 
water-right,  that  there  should  be  an  actual  interference  with 
the  plaintiff's  right.  The  assertion  of  an  adverse  claim  is  all 
that  is  required.-^ 

§  337.  Eiiuity  has  Power  to  Determine  Extent  of  Right.— 

A  Court  of  Equity  has  power  to  ascertain  and  determine  as 
between  several  appropriators  of  the  w^ater  of  a  natural  stream 
the  extent  of  the  respective  rights  of  each  in  the  waters 
therein  flowing,  to  regulate  the  use  thereof  in  such  a  way  as 
to  maintain  equality  of  rights  in  the  enjoyment  of  the  common 

ISee    ante  Section   317  and  an-  Co.,  77  Cal.  399;  Peregoy   vs.   Sel- 

thorities  cited.  lick,  79  Cal.  568;  21  Pac.  Rep.  966; 

2 Ibid.     See  Combs  vs.  Agricul-  Harris  vs.  Harrison,  93  Cal.   676; 

tural  Ditch  Co.,    17   Colo.   196;  28  29  Pac.   Rep.    325;   Pacific   Yacht 

Pac.  Rep.  966,  and  authorities.  Club   vs.    Sausalito  Bay     W.    Co. 

SvStandard  vs.  Round  Valley  W.  (Cal.),  33  Pac.  Rep.  322. 


§3^7J  LEGAL    REMEDIES.  529 

property,  and  to  enjoin  a  subsequent  appropriator  from  inter- 
fering with  the  rights  of  the  prior  appropriators  as  ascertained 
and  established  by  the  Court.' 

The  Court  has  power  to  prescribe  the  method  to  be  used  to 
measure  the  water.-'  But  it  was  held  by  the  Supreme  Court 
of  Oregon  that  equity  will  not  adjudge  a  question  of  priority 
of  title  of  a  corporation  to  rights  and  franchises  for  irrigation 
purposes  in  order  to  enable  it  to  issue  bonds  to  continue  and 
complete  the  work  on  a  presumption  of  possible  intent  of  de- 
fendants to  disturb  the  same,  there  having  been  no  overt  act 
or  disturbance,  the  corporation  not  having  diverted  the  water 
nor  done  any  work  comparatively  of  construction.-'' 

iFrey  vs.  Lowden,  70  Cal.  550;  W.  Co.,  95  Cal.  490;  30  Pac.  Rep. 

1 1  Pac.  Rep.  83S;  Lorenz  vs.  Jacobs,  577. 

3  Pac.  Rep.  659;  Combs  vs.   Slay-  2  Tolman  vs.  Casey,   15  Ore.  83. 

ton,  19  Ore.  99;  26  Pac.  Rep.  661;  13  Pac.  Rep.  669. 

Riverside  Water  Co.  vs.  Gage,  89  3  Umatilla   Ir.  Co.   vs.    Umatilla 

Cal.  410;  26  Pac.  Rep.  889;  Alham-  Imp.  Co.,  22  Ore.  366;  30  Pac.  Rep. 

bra  A.  &  W.  Co.   vs.   Richardson  30. 


PART     TWO. 


SIAIE  m  TERRITORIAL  LAWS, 


CHAPTER  XII. 
Laws  Governing  Irrigation  in  California. 


I.   IRRIGATION   IN   GENERAI.. 
Section.— 

338.  Contents  of  Part  Second,  also 

of  present  chapter. 

339.  Irrigation  in  California. 

340.  Irrigation  laws  of  California. 

— In  general. 
II.  Sf  ATUTORY  1,AWS  ADOPTED  BY 
CIVIL  CODE  OF  CAI.IFORNIA. 

341.  Rights   to  water  may  be  ac- 
quired by  appropriation. 

Appropriation    must   be    for 

beneficial  use. 
Point   of    diversion    may   be 

changed. 
Water  may    be   turned   into 

and    conveyed    by    natural 

channels. 
First  in  time,  first  in  right. 

346.  Rule  as  to   notice  of  appro- 

priation. 

347.  Diligence  in  diverting  water. 

348.  Completion    defined.  —  Doc- 

trine of  relation. 

349.  Forfeiture.— Rights  of    pres- 

ent claimants. — Duty  of  re- 
corder. 


342. 
343- 
344. 

545- 


Section. — 

350.  Rights   of   riparian    proprie- 

tors. 

351.  Summary  of  above  rules. 

352.  An  Act  to  promote  irrigation. 

353.  An   Act    to  fix   the   rates   at 

which  water  shall  be  sold. 

III.  REGULATION    AND     CONTROL 

OF    DITCH    COMPANIES. 

354.  Appropriated  water  a  public 

use. 

355.  Same. — Powers  and  duties  of 

county  supervisors. 

356.  Eminent  domain. 

357. — Same. — Authorities  constru- 
ing code. 

IV.  CALIFORNIA  IRRIGATION  DIS- 

TRICT  LAW. 

358.  The  "  Wright  Law." 

359.  Organization  of  irrigation  dis- 

tricts. 

360.  Petition  to   Board   of   Super- 

visors.— What  to  contain. — 
Lands  that  must  be  in- 
cluded.—Notice  of  election. 
— Ballots  what  to  contain. 


IRRIGATION    IN    CALIFORNIA. 


531 


Section.— 

361.  Election.— Statute  of  limita- 

tion.— Lands  to  be  in  only 
one  district. — Election  pre- 
cincts.— Number  of  direct- 
ors. 

362.  Time  for  election  and  officers 

to  be  elected. 

363.  District    elections.  —  Posting 

of  notices. — Duties  of  elec- 
tion board. — Time  of  vot- 
ing.— Manner  of  certifying 
to  returns. — Canvassing  re- 
turns. 

364.  Organization.  —  Powers    and 

duties  of  the  board. — Ratio 
of  distribution  of  water. 

365.  Meetings  of  board.— Acquisi- 

tions of  land  and  water 
rights.  —  Dams  and  reser- 
voirs. 

366.  Title  to  property  acquired.— 

Powers  of  board  in  suits  at 
law  or  in  equity. 

367.  Issuance   of   bonds.— Special 

elections  for.— Bonds  how 
paid. — Assessments. 

368.  Board  to  sell  bonds. 

369.  Bonds  how  to  be  paid. 

370.  Assessment  of  real  property. 

371.  Levying   of    assessments    to 

pay  interest  on  bonds. 

372.  Lien  of  assessment. 

373.  Collection     of     assessments, 

how  made.— Delinquent  as- 
sessments. 

374.  Sale  of  property.— Collector's 

certificate. 

375.  Time  and  manner  in   which 

property  may  be  redeemed. 

376.  Deeds.— Validity    of    sale.— 

Time  and  manner  of  settle- 
ment. 

377.  Payment    of    coupons,     pay 

ment    and    redemption 
bonds. 


of 


Section.— 

378.  Contracts  for  construction  of 

ditches  and  canals. 

379.  Payment    of    claims.  —  Pay- 

ments    from     construction 
fund. 

380.  Powers  of  board. 

381.  Salary  of  directors.— Officers 

not  to  be  interested  in  con- 
tracts.- Special  elections. 

352.  Limit   of  power  of  board  to 

incur  indebtedness. 

353.  Apportionment    of    water. — 

Duty  of  directors. 

384.  Act  not  to  effect  navigation 

or  mining  industry. 

385.  Act  not  to  effect  existing  laws 

or  rights  acquired. 

386.  Reduction      of     bonded     in- 

debtedness, election  there- 
for. 

387.  An    Act    to    provide  for   the 

leasing  of  water  for  mechan- 
ical purposes  by  irrigation 
districts. 

388.  Disorganization  and  abandon- 

ment by  irrigation  districts. 

V.    CONSTRUCTION  OF  CAI.IHORNIA 
IRRIGATION  DISTRICT  LAW. 

389.  Nature  of  irrigation  districts 

as  organized  under  the  Act. 

390.  Constitutionality    of    the 

"  Wright  Law." 

391.  Same.— Authorities. 

392.  Proceedings  for  confirmation 

of  organization. 

393.  Proceedings  for  confirnuilioii 

of  bonds. 
•^9.1.  Proceedings  to    inchnle    and 
exclude  territory. 

395.  Same.— Continued. 

396.  Dissolution  of  irrigation  dis- 

tricts. 


532  IRRIGATION    IN    CALIFORNIA.  [<^  338,  339 

I.  Irrigfitioii  in  General. 

§  338.  Contents  of  Part  Second,  also  of  Present  Chap- 
ter.— Part  Second  of  this  volume  will  be  devoted  to  a  synopsis 
and  abstract  of  the  statutory  laws  in  force  in  the  various 
States  and  Territories  governing  water  rights  in  their  re- 
spective jurisdictions;  and  to  a  discussion  of  the  decisions  of 
the  highest  Courts  construing  those  statutory  enactments. 

The  present  chapter  will  be  devoted  to  the  State  of  Cali- 
fornia and  the  rules  and  regulations  governing  water  rights 
in  that  State. 

§  339.  Irrigation  in  California. — We  shall  devote  con- 
siderable space  to  the  discussion  of  the  subject  of  irrigation 
in  California,  first,  because  the  laws  of  that  State  are  looked 
upon  as  an  example  and  followed  as  a  model  (a  precedent  to 
a  great  extent)  b}^  the  laws  of  all  the  other  States  and  Terri- 
tories of  the  arid  region;  and  second,  because  the  State  of 
California,  constituting  a  large  and  important  part  of  the  field 
where  the  art  of  irrigation  is  practiced,  is  also  the  great 
model  for  the  rest  of  the  arid  region  regarding  the  practical 
development  of  its  water  supply,  and  in  the  use  of  water  as 
applied  to  the  purpose  of  irrigation.  Reports  upon  the  con- 
dition of  that  State  show  that  California  is  utilizing  all  of 
her  water  resources  and  employing  all  the  methods  peculiar 
to  other  localities.  Irrigators  are  using  surface  waters  from 
the  streams,  drainage  water,  sewage  water,  water  from  sub- 
terranean courses,  water  from  artesian  wells,  from  tunnels 
run  into  mountain  sides,  and  water  impounded  in  reser- 
voirs filled  by  large  or  small  drainage  areas.  The  present 
California  idea  is  that  water  is  gold,  and  it  is  hunted  and 
appropriated  with  as  much  ardor  as  the  precious  metal  itself 
was  in  the  earlier  times.  California  is  not  only  ahead  in 
the  development  of  her  water  supply  and  the  number,  size 
and  boldness  of  design  of  her  irrigation  works,  but  that 
State  is  also  superior  to  all  other  States  and  Territories  of 
the  arid  west  in  her  method  of  applying  and  utilizing  the 
water.  She  is  making  great  advancement  in  this  depart- 
ment of  her  development,  and  reducing  to  an  exact  science 


§339,340J  IRRIGATION    IN    <!ALIKORNIA.  533 

the  amount  of  water  that  can  be  applied  to  a  tract  of  land  at 
certain  intervals  with  the  best  results  both  in  quantity  and 
quality  of  crops,  and  thus  rapidly  doing  away  with  the  waste- 
ful methods  of  the  past.  This  advancement  was  rendered 
possible  in  that  State  by  the  existing  extremes— the  econom- 
ical uses  of  water  rendered  necessary  by  scanty  supply  and  a 
dense  population  in  some  localities;  and  in  others  its  lavish 
use  made  easy  by  the  presence  of  a  great  volume  of  water 
ready  for  diversion  upon  the  land  needing  irrigation. 

It  IS  .safe  to  .say  that  California  owes  the  larger  portion  of 
the  prominence  which  it  occupies  to-day  to  the  results  of  irri- 
gation. The  localities  where  irrigation  has  been  practiced 
the  longest  and  most  extensively  have  gained  the  widest  repu- 
tation outside  of  the  State.  Almost  every  step  taken  in 
advance  in  California's  prosperity  since  the  subsidence  of 
the  first  great  rush  for  gold  has  been  anticipated  by  new  and 
more  extensive  irrigation  developments.  It  is  no  exaggera- 
tion to  say  that  were  it  not  for  irrigation  the  fame  of  Cali- 
fornia would  be  confined  to  the  product  of  her  mines,  and 
she  would  not  have  more  than  half  her  present  population. 
Without  irrigation  the  major  portion  of  the  State,  which  is 
to-day  thickly  populated  and  in  the  highest  degree  productive, 
would  still  be  in  its  original  barren  condition. 

§340.  Irrigation  Laws  of  Csiiiforiiia.  -In  (iiMU'ial.— The 

methods  of  practicing  the  art  of  irrigation  in  California  are 
many  and  diverse.  We  can  also  say  the  same  of  the 
laws  regulating  and  controlling  its  practice.  Its  laws  permit 
the  acquisition  and  retention  of  water-rights  by  means  of  all 
the  known  systems,  which  in  turn  are  regulated  and  controlled 
by  almost  every  principle  of  law  that  applies  to  that  subject. 
One  can  acquire  title  to  water-rights  by  means  of  the  prin- 
ciple of  prior  appropriation,  whereby  he  diverts  the  water 
from  its  natural  channel  and  apj^lies  it  to  irrigating  the  soil  or 
to  some  other  beneficial  purpose.  The  riparian  proprietor  is 
protected  in  his  rights  in  and  to  the  waters  of  the  stream  or 
lake  flowing  over  or  adjoining  his  land,  and  greater  license  is 
allowed  him  than  was  permitted  under  a  strict  construction 
of  the  comnKjM   law  rules  in   his  being  perjnitted  to  divert  a 


534  IRRIGATION    IN    CALIFORNIA.  [§  340,  341 

reasonable  amount  of  water  for  the  purpose  of  irrigation. 
Rights  acquired  under  the  civil,  Spanish  and  Mexican  laws, 
before  California  was  transferred  to  the  United  States,  are 
protected  to  the  fullest  extent.  Also  at  different  times 
statutory  enactments  have  been  passed  by  the  legislature 
regulating  and  controlling  the  uses  of  water.  And  last  by 
statutory  enactments  in  1887,  the  "District  System,"  familiarly 
known  as  the  "  Wright  Law,"  was  created,  which  is  without 
doubt  the  most  famous  irrigation  law  in  the  United  States. 

II.  Statutory  Ljuvs  Adopted  by  Civil  ('ode  of  California. 

§  341.  Rights  to  Water  Jiuiy  be  Acquired  by  Appropria- 
tion.— On  the  first  of  January,  1873,  the  Civil  Code  of  Cali- 
fornia went  into  effect  and  contained  the  following  provisions 
for  the  acquisition  of  water-rights,  which  we  will  take  up  and 
discuss  singly. 

"  Sec.  1410.  The  right  to  the  use  of  running  water  flowing 
in  a  river  or  stream  or  down  a  canon  or  ravine  may  be  ac- 
quired by  appropriation." 

This  section  contains  a  mere  statutory  declaration  of  the 
rule  which  had  been  previously  settled  by  the  Courts  to  be 
the  law  concerning  the  appropriation  of  water  from  streams 
in  the  State. ^  In  the  absence  of  legislation  upon  the  sub- 
ject in  the  early  history  of  the  State  it  became  necessary  for 
those  claiming  rights  by  virtue  of  an  appropriation  to  depend 
wholly  upon  the  Courts  in  case  of  any  controversy  regarding 
them.2  And,  fortunately  for  those  claiming  such  rights,  the 
Courts,  by  a  long  line  of  decisions,  before  any  direct  statutory 
enactments  upon  the  subject,  under  the  peculiar  condition  of 
the  country  and  needs  and  necessities  of  the  people,  held 
that  rights  to  the  water  might  be  acquired  by  prior  appro- 
priation.^ 

I  As  we   have   seen   in   Chapter  growing   out   of   the    mining    in- 

IV   of   this   Volume,    the   law   of  dustry,  which  for  a  long  time  was 

private    appropriation    of    water,  the  principle  industry  in  the  State 

peculiar  to  States  and  Territories  of  California. 

of  the  arid  west,   took  its  begin-  2  See  ante  Chapter  IV  Sec.  107. 

ning  from    the    very    necessities  3  See  Hoffman  vs.  Stone,  7  Cal. 


§342,343]  IRRKiATION    IN    CALIFORNIA.  535 

§  342.  Appropriation  must  be  for  BtMieficial   I*urpose.— 

"Sec.  141 1.  The  appropriation  must  be  for  sonic  useful  or 
beneficial  purpose,  and  when  the  appropriator  or  his  successor 
in  interest  ceases  to  use  it  for  such  a  purpose  the  right  ceases." 

The  doctrine  of  this  section  has  also  been  established  to 
mean  that  the  beneficial  purpose  may  be  irrigation,  mining, 
milling,  manufacturing,  agricultural,  horticultural,  domestic, 
municipal  or  any  other  useful  or  beneficial  object;  but  there 
must  be  some  actual  positive  beneficial  purpose  existing  at 
the  time  or  contemplated  in  the  future  as  the  object  for  which 
the  water  is  to  be  utilized;  otherwise  no  prior  and  exclusive 
right  to  water  can  be  acquired,  no  matter  how  elaborate  and 
complete  may  be  the  physical  structures  by  which  the  appro- 
priation is  efifected.^ 

§  343.  Point  of  Divei*sion  may  be  thanj^ed.— 

"  Sec.  141 2.  The  person  entitled  to  the  use  may  change  the 
place  of  diversion  if  others  are  not  injured  by  such  change, 
and  may  extend  the  ditch,  flume,  pipe  or  aqueduct  by  which 
the  diversion  is  made  to  places  beyond  that  where  the  first  use 
was  made."- 

49;  See  "Arid  Region  Doctrine"  l  See  McKinney    vs.    Smith,    21 

Ante  Chapter  IV.  Cal.  464,  and  authorities  cited. 

As  to  rights  of  appropriators  in  .\nte  Sections  i5"-i53- 

water    generally,  see  ante  Chap-  In  the  case  of  Barrows  vs.  Fox, 

ters  VII  &  VIII.  98  Cal.  63,  it  was  held   that   the 

The  Section  above  quoted   has  extent    of    an     appropriation     of 

been  construed  to  mean  that  per-  water  is  limited,  not  by  the  quan- 

colating       waters      collected      or  tity  of  water  diverted,  but  by  the 

gathered  in  a  stream  running  in  a  (juantity  which  is  or  which  maybe 

defined  channel  constitutes  prop-  applied  by   the  appropriator  to   a 

erty     or     incidents    of    property  beneficial  use;  and  as  to  any  sur- 

which  may  be  acquired  by  grant,  plus  the  riparian  proprietor  below 

express  or  implied  or  by  appro-  the  point  of  diversion  has  a  right 

priation;  and  when  rights  in  such  to  demand  that  it  should  How  in 

percolating   waters  are    acquired  the   stream    as   it    had    l)ecn    ac- 

the    owner    cannot    be     divested  customed  to  How. 

thereof  by   the  wrongful  acts   of  2  Sec     ante    Section      248     and 

another.     Cross  vs.   Kitts,  69  Cal.  authorities  cited.     Also  sec  Deer- 

217.    See  also   Watterson  vs.  Sal-  ing's    Civil    Code    of    California, 

dunbehere,  35  I'ac.  Rep.  .132-  ^ec.  1112,  ..n<l  authorities  cited. 


536  IRRIGATION    IN    CALIFORNIA.  [§343-345 

The  authorities  hold  that  an  appropriator  may  increase  the 
amount  of  water  used  so  long  as  the  rights  of  others  are  not 
interfered  with.'  A  person  entitled  to  divert  a  given  quan- 
tity of  water  from  a  stream  may  take  it  at  stny  point  on  said 
stream  and  may  change  the  point  of  diversion  at  pleasure, 
provided  the- rights  of  others  be  not  injuriously  affected.  Or 
in  other  words  the  right  to  divert  a  certain  quantity  of  w^ater 
having  been  once  acquired  the  manner  and  place  of  taking  it 
cannot  be  questioned  by  those  not  injured  thereby. ^ 

§  344.  Water  may  be  Turned  into  and  Conveyed  by  Nat- 
ural Channels.— 

"  Sec.  1413.  The  water  appropriated  may  be  turned  into 
the  channel  of  another  stream  and  mingled  with  its  waters 
and  then  reclaimed;  but  in  reclaiming  it  the  water  already 
appropriated  by  another  must  not  be  diminished." 

The  using  of  a  natural  stream  for  a  ditch  is  a  very  common 
practice  in  California;  and  it  is  sanctioned  by  the  above  statute 
and  the  decisions  of  its  Courts.'" 

§  345.  First  in  Time,  First  in  Right.— 

"Sec.  1414.  As  between  appropriators  the  one  first  in  time 
is  the  first  in  right." 

This  rule  is,  as  we  have  seen  in  our  previous  discussions, 
the  great  basis  by  which  the  rights  of  appropriators  are  de- 
termined. The  waters  of  a  stream  which  are  not  embraced 
in  the  amount  of  an  appropriator's  claim  may  be  appropriated 
by  others  either  above  or  below  him;  and  among  the  suc- 
cessive appropriators  on  the  stream  each  is  in  the  position  of 
a  prior  one  to  all   who  are   subsequent  to  himself.*    The  sur- 

1  Ibid.  indefinite  and  uncertain  to  sustain 

Kidd   vs.    Laird,    15   Cal.     161;  the  judgment   restraining  the  di- 

Butte  T.  &  M.  Co.  vs.  Morgan,   19  version.     Stanford    vs.     Felt,     71 

CaL  609;  Junkens  vs.   Bergen,  67  CaL  249. 

Cal.  267.  See  ante  Section  246. 

3  In  an  action  to  restrain  the  di-  *  See  ante  Section  173. 

version  of  water  from  a   certain  The   surplus  water  of  a  stream 

creek  the  findings  on  the  issue  as  after   a   prior  appropriation    may 

to   whether  the   water,    after    its  be   taken   by   another   appropria- 

diversion  was  returned  to  the  bed  tion,  and  the  second  appropriator 

of  the  creek  or  not,  were  held  too  will  have   a   paramount   right   to 


§345,346]  IRRIGATION     IN    CALIFORNIA.  r)37 

plus  water  may  be  appropriated  by  t)thers,  ami  iiki\  .iii>i- 
either  from  an  appropriation  of  a  part  of  the  water  contiiuiously 
or  an  intermittant  appropriation  of  the  whole  or  part  of  the 
water  at  stated  intervals.  The  rule  a.s  to  the  rights  of  an 
appropriator  of  the  surplus  are  applicable  alike  to  either 
case.^  And  those  who  hold  prior  rights  above  or  below  can 
in  no  way  change  or  extend  the  use  of  the  water  appropriated 
by  them  to  the  prejudice  of  the  subsequent  appropriator,  but 
they  are  limited  to  the  rights  enjoyed  by  them  when  he  se- 
cured his  own.  The  amount  of  water  wliich  a  prior  appro- 
priator is  entitled  to  use— that  is,  the  extent  of  the  right  orig- 
inally acquired  by  him — is  a  question  of  fact  for  the  jury. "^ 
Yet  the  right  of  the  first  appropriator  is  not  determined  by  a 
comparison  of  the  value  of  the  water  to  him  and  the  subse- 
quent locators.^*  Where  different  persons  separately  appro- 
priate the  waters  of  a  stream,  and  are  severally  nsing  the 
same  under  certain  regulations  as  to  the  time  and  manner  of 
such  use,  they  are  tenants  in  common,  and  each  of  them  may 
maintain  an  action  to  enjoin  a  trespasser  from  diverting  any 
portion  of  the  water  thus  appropriated.^ 

§340.  Rule  as  to  Notico  ol"  Appiop'is'^'^*"  ~- 

"Sec.  1415.  A  person  desiring  to  appropriate  water  nuist 
post  a  notice  in  writing  in  a  conspicuous  place  at  the  point  ot 
intended  diversion,  stating  therein: 

"I.  That  he  claims  the  water  there  flowing  t<j  the  extent 
of  (giving  the  number)  inches,  measured  under  a  four-inch 
pressure. 

"  2.   The  purposes  for  which  he  chiims  il,  and  llie  phiee  ol 

intended  use. 

use  all   the  waters  which  are   not  '  Kytle  Creek  \V.  Co.  vs.  I'enlew. 

required  for  the  special  jiurposes  65  Cal.  .UJ.  See  also  subject  Ten- 

of  a  prior  appropriator.     McKiii-  ants    in     Common,    ante    Chapter 

ney  vs.  Smith,  21  Cal.  374-  1>^.  Sections  y>i-y^b.  See  also  on 

ISniith  vs.  O'Hara.  4.-^  Cal.  37>-  Keiitral    construction  of  the  Sec 

2  Nevada  W.  Co.   vs.   l>owell.  .it  «'"".  Hrown  vs.  .Mullin.  O5  Cal.  89; 
Q^]    jog  Juiikans  vs.    UerKin.  (.7  Cal.   267; 

3  Weaver   vs.  Knreka   Lake   Co  .  Lcdu  vs.  .Jim  Vet  Wa.  67  Cal.  346; 
J5  eal.  271.  I'rey  vs.  Lowd.-n,  7"  Cal.  sso. 


538  IRRIGATION    IN    CALIFORNIA.  [§  346-348 

"  3.  The  means  by  which  he  intends  to  divert  it,  and  the 
size  of  the  flume,  ditch,  pipe  or  aqueduct  in  which  he  in- 
tends to  divert  it. 

"A  copy  of  the  notice  must,  within  ten  days  after  the 
notice  is  posted,  be  recorded  in  the  office  of  the  recorder  of 
the  county  in  which  it  is  posted." 

No  particular  form  of  notice  is  required,  and  all  that  is 
necessary  is  that  it  should  be  sufficient  to  put  a  prudent  man 
on  inquiry,^  and  to  this  end  its  language  must  be  liberally 
construed.^ 

§  347.  Diligence  in  Diverting  Water.  — 

' '  Sec.  1416.  Within  sixty  daj's  after  the  notice  is  posted  the 
claimant  must  commence  the  excavation  or  the  construction  of 
the  works  in  which  he  intends  to  divert  the  water  and  must 
prosecute  the  work  diligently  and  uninterruptedly  to  comple- 
tion, unless  temporarily  interrupted  by  snow  or  rain." 

After  the  notice  of  intention  to  appropriate  the  water  is 
given  the  works  by  which  the  appropriation  is  to  be  effected 
must  be  actually  commenced,  and  then  must  be  prosecuted 
with  all  due  and  reasonable  diligence  until  completed  in 
order  to  perfect  the  exclusive  right  to  the  use  of  water  which 
is  obtained  through  a  valid  appropriation.^  Whether  the  work 
has  been  begun  and  prosecuted  with  diligence  is  a  question 
of  fact  for  the  jury,  to  be  determined  by  all  of  the  circum- 
stances of  each  particular  case.^ 

§    348.   Completion  Defined. — Doctrine    of   Relation. — 

"  Sec.  141 7.   By  '  completion  '  is  meant  conducting  the  waters 
to  the  place  of  intended  use." 

1  Kimball  vs.  Gearliart,  12  Cal.  stream,  as  provided  by  the  civil 
27;  ante  Section  157-158  and  an-  code,  section  1415,  and  proceeds, 
thorities  cited.  as  required  by  statute  to  perfect 

2  Osgood  vs.  El  Dorado  Water  his  rights,  was  held  to  be  the  rule 
Co.,  56  Cal.  571,  579.  in  the  case  of    Wells  vs.  Mantes, 

A    person   by   actual    diversion  34  Pac.  Rep.  324. 

and  appropriation  of  the  water  of  3  Osgood  vs.   El  Dorado   Water 

a  stream  acquires  the  right  to  its  Co.,  56  Cal.  571,  581. 

use  as  against  a  claimant  who  sub-  ■!  Ibid.     See  Ante  Sections  160- 

sequently   posts   notices  on    such  161. 


§348-350]  IHKKiATION    IN    i\\LlF(»K.NI.\.  539 

"  Sec.  1418.  By  compliance  wnii  the  above  ruk-s  the  claim- 
ant's right  to  the  use  of  the  water  relates  back  to  the  time 
when  the  notice  was  posted." 

The  adoption  of  this  section  settled  all  controversies  in  the 
State  as  to  what  point  or  step  the  rights  of  an  appropriator 
related  in  the  necessary  series  of  acts  required  to  complete 
an  appropriation.' 

§349.  Forfeiture.— Ki!i:h<s  of  rrescnt  Claiiiiant.  -Duty 
of  Recorder. — 

"  Sec.  1419.  A  failure  to  comply  with  such  rules  deprives 
the  claimants  of  the  right  to  the  use  of  the  water  as  against 
a  subsequent  claimant  who  complies  therewith." 

"Sec.  1420.  Persons  who  have  heretofore  claimed  the  right 
to  water  and  who  have  not  constructed  works  in  which  to  di- 
vert it  and  who  have  not  diverted  nor  applied  it  to  some  use- 
ful purpose  must,  after  this  title  takes  effect,  and  within 
twenty  days  thereafter,  proceed  as  in  this  title  provided,  or 
their  right  ceases." 

"  Sec.  1421.  The  Recorder  of  each  county  must  keep  a  book, 
in  which  he  must  record  the  notices  provided  for  in  this 
title." 

§  350.  Ui«;hts  of  Itiparian  l^'oprietoix. — 

"  Sec.  1422.  The  rights  of  riparian  proprietors  are  not 
affected  bj-  the  provisions  of  this  title." 

The  above  section  was  repealed  by  an  Act  of  the  LeK'^l'i- 
ture,  approved  March  15,  1887.^ 

Sections  i  and  2  of  the  Act  are  as  follows  : 

"Sec.  I.  Section  fourteen  hundred  and  twenty-two  of  title 
eight  of  part  four  of  division  second  of  an  act  entitled  '  An 
Act  to  establish  a  civil  code,'  ajjpnned  March  the  twenty- 
first,  eighteen  hundred  and  seventy-two,  is  hereby  repealed; 
provided,  that  the  repeal  of  this  section  shall  not  in  any  7itiy  in- 
terfere 7uith  any  rights  already  vested. 

"  Sec.  2.  This  act  shall  take  effect  from  and  alter  its  pas- 
sage." 

l.See  doctrine  of  rtlalioii    Anli  -Sot-  Sl;itiiti-s  iSS;,  j),  ilj. 

Section  167. 


540  IRRIGATION    IN    CALIFORNIA.  [§  350 

From  the  above  it  is  evident  that  prior  and  up  to  the  date 
of  the  repealing  act  riparian  rights  existed  and  still  exist  in 
California  where  those  rights  were  acquired  prior  to  the  re- 
peal of  section  1422.' 

Subsequent  acts  of  the  legislature  cannot  authorize  officers 
to  enter  upon  private  water  courses  and  to  disturb  the  own- 
ers thereof  in  their  use  and  enjoyment.^ 

In  a  very  recent  case  decided  by  the  Supreme  Court  of  Cali- 
fornia it  was  held  that  the  common  law  rules  as  to  riparian 
rights  are  so  far  modified  that  an  upper  riparian  proprietor 
has  the  right  to  a  reasonable  use  of  the  water  of  a  natural 
stream  for  irrigating  the  riparian  land  where  irrigation  is 
necessary,  although  such  use  may  appreciably  diminish  the 
flow  down  to  the  lower  riparian  proprietor;  but  he  does  not 
have  the  right  to  absorb  all  the  water  of  the  stream  so  as  to 
allow  none  to  flow  down  to  the  lower  riparian  proprietor. 
And  it  was  also  held  in  the  same  case  that  the  question  as  to 
what  was  a  reasonable  use  of  the  waters  of  a  natural  stream 
for  irrigating  the  land  of  a  riparian  proprietor  is  a  question  of 
fact,  depending  upon  the  circumstances  appearing  in  each 
particular  case.-^ 

1  Riparian    proprietors    have    a  Cal.   255;  Learned  vs.  Tangeman, 

usufruct  in  the  waters  of  a  stream  65  CaL  334;  Creighton  vs.  Kaweah 

as  it  passes  their  lands.     Pope  vs.  Canal  &  Ir.  Co.,  67  Cal.  221;  Hein- 

Kinman,  54  Cal.  3;  Hale  vs.   Mc-  len  vs.    Fresno  Canal  &  Ir.   Co., 

Lea,  53  Cal.  578;  Hanson  vs.  Mc-  68  Cal.  35;  Alhambra  Addition  W. 

Cue,  42  Cal.   303;   Ellis  vs.   Tone,  Co.  vs.  Richardson,  72  Cal.  598. 

58    Cal.    289;    Anaheim     W.    Co.  3  Harris  vs.  Harrison, 98  Cal.  676; 

vs.   Semi-Tropic  W.   Co.,   64  Cal.  29  Pac.  Rep.  325. 

185.  It  was  held  in  the  recent  case 

SCharnock  vs.  Rose,  7oCal.  189;  of   Healy   vs.    Woodruff,   97    CaL 

As  to  general  rights  of  riparian  264,  that  an  appropriator  of  water 

proprietors  in  California  see  Swift  on  the  public   lands  does  not  b_r 

vs.  Goodrich,  70  Cal.   103;   Barnes  becoming   a   riparian   owner  lose 

vs.  Marshall,  68  Cal.  569;  Weider-  his   right  to  acquire  more  of  the 

kind  vs.    Tuolumne    W.    Co.,    65  water  by  a  subsequent  appropria- 

Cal.   431;    Bliss    vs.    Johnson,    76  tion   or  enlargement  of  his  ditch, 

Cal.   597;  Montgomery  vs.    Lock,  but  that  he  may  take  all  of  the 

71    Cal.    75;  Heilbron  vs.   Fowler  water  of  the  stream  if  he  is  the 

Switch   Canal    Co.,    75   Cal.    246;  first     or    prior   appropriator    and 

People  vs.  Gold  Run  D.  &  M.  Co.,  there  is  no  other  riparian  owner 

66  Cal.   138;  Lux  vs.  Haggin,    69  at  the  time  of  the  appropriation  or 


§351,352]  IRRIGATION    IN    <A  M  I'l  •KNIA.  541 

§  351.  Siimmar.v  of  Ahox-  Kuh-s. -As  will  be  seen  iromau 
examination  of  the  above  sections,  they  are  very  general  and 
simply  embody  the  mles  in  statutory  language,  which  the 
Courts,  long  prior  to  their  enactment,  had  decided  to  be  neces- 
sary for  the  appropriation  of  water  from  natural  streams  as 
arising  from  the  needs  and  necessities  of  tlie  people  and  tor 
the  greatest  development  of  the  country.  Their  language 
being  general  the  rules  laid  down  are  not  restricted  to  any 
one  class  of  streams,  and  hence  must  be  construed  as  apply- 
ing to  all.  The  rules  that  we  have  laid  down  in  a  previous 
chapter^  upon  the  subject  of  appropriation  ot  the  water  of 
streams  upon  the  public  domain  are  applicable  under  the 
foregoing  sections.  The  language  of  the  statute  is  more  defi- 
nite than  the  rules  laid  down  by  the  decisions  of  the  Courts. 
As,  take  for  example,  the  decisions  say  that  a  person  attempt- 
ing to  make  an  appropriation  of  the  waters  of  a  stream  must, 
after  he  has  posted  his  notice,  within  a  reasonable  time,  com- 
mence the  constructiow  of  his  works  for  the  diversion;  while 
the  statute  limits  the  time  to  commence  the  omstniction  to 
sixty  days  after  having  posted  his  notice. 

§  352.  An  Act  to  Promote  lrrii;alioii.— In  addition  to  the 
above  general  provisions  of  the  Civil  Code  the  legislature  of 
California  from  time  to  time  has  enacted  special  laws  upon  the 
subject  of  irrigation,  and  among  these  laws  was  one  approved 
April  I,  1872,2  entitled,  "An  Act  to  Promote  Irrigation," 
and  the  object  of  this  law  is  best  described  in  the  first  section 
of  the  Act  which  is  as  follows: 

"Sec.  I.  Whenever  the  owners  of  any  body  of  lands  sus- 
ceptible of  one  mode  of  irrigation  or  drainage  desire  to  irrigate 
or  drain  the  same  they  may  present  to  the  board  of  supervisors 
of  the  county  in  which  the  lands  or  the  greater  jjortion 
thereof  are  situated,  at  a  regular  meeting  of  the  board,  a  i)eti- 
tion  setting  forth  that  they  cUsin- to  adopt  measures  to  irrigate 


enlargement    of    the    ditch,    ami  '  Atilc  fhajjter  VI. 

those    who  subsequently    hecoinc  -  Statutes    of     iS7i-j.      p.     ^45. 

riparian  owners  actjuire  no  rij^hts  DeerinR's  Code,  V«)lunie  2,  p.  269. 
as  against  such  prior  ap])ropri;itor. 


542  IRRIGATION    IN    CALIFORNIA.  [§352 

the  same,   the  descriptions  of  the  land  by  legal  subdivision, 
the  number  of  acres  in  the  whole  district  and  the  number  of 
acres  in  each  tract,  with  the  names  of  the  owners  thereof  and 
the  names  of  three  persons  who  may  desire  to  serve  as  trus- 
tees for  the  first  three  months." 

By  following  the  rules  laid  down  in  this  Act  the  owners  of 
lands  were  able  to  form  an  association  among  themselves  for 
irrigation  purposes.  Rules  were  laid  down  for  the  organiza- 
tion of  the  districts  and  for  the  by-laws  of  the  association  and 
duties  of  the  officers  of  the  same  after  its  organization.  The 
powers  of  the  officers  or  trustees  were  defined  as  follows: 

"  Sec.  8.  The  board  thus  formed  have  power  to  elect  one  of 
their  number  president  thereof  and  employ  engineers  to  sur- 
vey, plan,  locate  and  estimate  the  cost  of  the  works  necessary 
for  the  irrigation  and  the  water-rights  needed  and  the  land 
needed  for  right  of  wa}',  including  drains,  canals,  sluices, 
water-gates,  embankments  and  material  for  construction  and 
to  construct,  maintain  and  keep  in  repair  all  works  necessarj'^ 
to  the  object  in  view." 

The  running  expenses  were  provided  for  by  provisions  for 
assessments  upon  the  members  of  the  association  for  the  pur- 
pose of  defraying  the  cost  of  constructing  and  maintaining  the 
works  necessary.  And  it  was  also  provided  that  the  charges 
assessed  upon  any  tract  of  land  within  the  county  constituted 
a  lien  thereon.  There  was  also  a  provision  for  the  acquisition 
of  the  necessary  property  as  follows: 

"  Sec.  21.  The  trustees  may  acquire,  by  purchase,  all  prop- 
erty necessary  to  carry  out  and  maintain  the  system  of  irri- 
gation or  drainage  provided  for. ' ' 

The  Act  also  provided  that  trustees  might  acquire  rights  to 
water  and  rights  of  way  in  the  following  manner: 

"  Sec.  22.  The  trustees  may  acquire  by  condemnation: 

"  I .  The  right  to  the  use  of  any  running  water  not  already 
used  for  culinary  or  domestic  purposes  or  for  irrigating,  mill- 
ing or  mining  purposes. 

"  2.  The  right  of  way  for  canals,  drains,  embankments  and 
other  work  necessary,  and  may  take  materials  for  the  con- 
struction, maintenance  and  repair  thereof  from  lands  outside 
of  as  well  as  within  the  limits  of  the  district. 


[§352,353]  IRRIGATION    IN    CALIFORNIA.  543 

"Sec.  23.  The  provisions  of  title  VII,  part  III.  of  the  Code 
of  Civil  Procedure  are  applicable  to  and  the  condemnation 
herein  provided  for  must  be  made  thereunder." 

Irrigation  or  drainage  by  owners  was  also  provided  for  as 
follows: 

"Sec.  24.  Whenever  any  district  susceptible  of  one  mode 
of  irrigation  or  drainage  is  entirely  owned  by  parties  who  de- 
sire to  irrigate  or  drain  the  same  or  to  manage  the  irrij;ation 
or  drainage  without  the  inter\-cntion  o(  trustees  or  the  estab- 
lishment of  by-laws  they  may  file  the  petition  provided  for  in 
sections  one  and  two,  and  must  state  therein  that  they  intend 
to  undertake  the  irrigation  or  drainage  on  their  own  responsi- 
bility." 

The  Act  also  provided  that  its  provisions  should  not  apply 
to  the  counties  of  Fresno,  Kern,  Tulare  and  Yolo. 

§353.  An  Act  to  Fix  the  Rutcs  hy  which  Water  shall 
be  Sold. — In  1880  the  Legislature  passed  "An  Act  author- 
izing the  boards  of  supervisors  of  counties  in  which  water  is 
sold  for  the  purpose  of  irrigation  to  fix  the  rates  at  which 
water  shall  be  sold,"  ^  which  provided  as  follow: 

"Section  i.  The  boards  of  supervisors  of  the  several  coun- 
ties of  this  State  in  which  water  is  appropriated,  funiished 
and  sold,  principally  for  the  purposes  of  irrigation,  are  here- 
by authorized  and  required  to  fix  the  maximum  rate  at  which 
such  water  shall  be  furnished  and  sold,  at  a  meeting  to  be 
held  in  the  month  of  February  of  each  year;  *  *  *  pro- 
vided that  nothing  in  this  section  shall  apply  to  water  fur- 
nished within  the  limits  of  any  incorporated  city  and  county, 
city  or  town. 

"Sec.  2.  Any  person,  company  or  corporation  collecting 
rates  for  water  furnished  for  irrigation  in  any  county  of  this 
State  in  excess  of  the  rates  provided  in  section  one  of  this 
Act  shall  forfeit  for  the  public  use  the  franchise  and  water- 
works of  such  person,  company  or  corporation  to  the  county 
in  which  such  excessive  rates  were  charged. 

"Sec.  3.  Upon  affidavit  being  made  by  any  interested  party, 
setting  forth  that  any  such  company,  person  or  corponition. 

Statute  of  iHHo,  p.  16,  2  Deeritigs  Code  271. 


544  IRRIGATION    IN    CALIFORNIA.  [§353,354 

has  charged  rates  for  water  furnished  for  irrigation  purposes 
in  excess  of  the  rates  established  by  the  board  of  supervisors, 
the  said  board  of  supervisors  shall  cause  the  district  attorney 
to  commence  an  action  in  the  Superior  Court  within  thirty 
days  from  the  receipt  by  them  of  such  affidavit  to  enforce  the 
forfeiture  of  the  franchise  and  the  water-works  of  such  person, 
company  or  corporation. 

"  Sec.  5.  No  person,  company  or  corporation  selling  water 
for  irrigation  shall  be  permitted  to  exercise  any  control  as  to 
the  use  of  the  water  after  its  delivery  to  the  purchaser." 

III.  Regulation  and  Control  of  Ditch  Companies. 

§  854.  Appropriated  Water  a  Public  Use.— On  March  12, 
1885,  there  was  approved  "An  Act  to  regulate  and  control 
the  sale,  rental  and  distribution  of  appropriated  water  in  this 
State,  other  than  in  any  city,  city  and  county  or  town  therein, 
and  to  secure  the  rights  of  way  for  the  conveyance  of  such 
water  to  the  places  of  use,"  which  provided  as  follows:^ 

"  Sec.  I.  The  use  of  all  water  now  appropriated  or  that  may 
hereafter  be  appropriated  for  irrigation,  sale,  rental  or  distri- 
bution is  a  public  use,  and  the  right  to  collect  rates  or  com- 
pensation for  use  of  such  water  is  a  franchise,  and  except 
when  so  furnished  to  any  city,  city  and  county  or  town  or  the 
inhabitants  thereof,  shall  be  regulated  and  controlled  in  the 
counties  of  this  State  by  the  several  boards  of  supervisors 
thereof  in  the  manner  prescribed  in  this  Act. 

"  Sec.  2.  The  several  boards  of  supervisors  of  this  State,  on 
petition  and  notice  as  provided  in  section  three  of  this  Act, 
are  hereby  authorized  and  required  to  fix  and  regulate  the 
maximum  rates  at  which  any  person,  company,  association  or 
corporation,  having  or  to  have  appropriated  water  for  sale, 
rental  or  distribution,  in  each  of  said  counties,  may  and  shall 
sell,  rent  or  distribute  the  same." 

Section  three  provided  substantially  as  follows:  That 
whenever  a  petition  of  not  less  than  twenty-five  taxpayers  of 
any  county  in  the  State  shall  in  writing  petition  the  board  of 
supervisors  thereof  to  regulate  and  control  the  rates  and  com- 

iStat.  1885,  p.  95;  2  Deering272. 


§354.355]  IRRIGATION    IN    CALIFORNIA.  515 

pensation  to  be  charged  by  any  person  or  company  specified 
in  the  petition  the  clerk  of  said  board  shall  immediately  pub- 
lish said  petition  with  a  notice  of  time  and  place  of  hearing, 
"  which  shall  impart  notice  to  all  persons,  companies,  asso- 
ciations and  corporations  mentioned  in  such  petition  and  all 
persons  interested  in  the  matters  of  such  petition  and  notice- 
Such  board  may  also  cause  citations  to  issue  to  any  person  or 
persons  within  such  county  to  attend  and  give  evidence  at  the 
hearing  of  such  petition  and  may  compel  attendance  by  at- 
tachment." 

§355.  Siinie. — Powers  and  Duties of('()imt.vSui)('i'visoi*s.— 

Section  four  of  said  Act  contains  provisions  for  the  supervis- 
ors to  estimate  the  value  of  the  property,  and  their  annual 
reasonable  expenses  for  repairs,  management  and  operating 
works;  "and  for  the  purpose  of  such  ascertainment  may  re- 
quire the  attendance  of  such  persons  to  give  evidence  and  the 
production  of  papers,  books  and  accounts,  and  may  compel 
the  attendance  of  such  persons  and  the  production  of  papers, 
books  and  accounts,  by  attachments.  If  within  their  respective 
counties." 

Section  five  of  the  Act  provides  that  the  board  of  supervis- 
ors may  also  establish  different  rates  and  compensation  for 
water  so  to  be  furnished  for  the  several  different  uses,  such  as 
mining,  irrigating,  mechanical,  manufacturing  and  domestic, 
for  which  such  water  shall  be  supplied  to  the  inhabitants,  but 
such  rates  as  to  each  class  shall  be  equal  and  uniform.  Said 
board  of  supervisors  in  fixing  rates  shall,  as  near  as  may  be, 
so  adjust  them  that  the  net  annual  receipts  and  profits  thereof 
to  the  said  persons,  companies,  associations  and  corporations, 
so  furnishing  such  water  to  such  inhabitants  shall  be  not  less 
than  six  nor  more  than  eighteen  per  cent,  upon  the  said  value 
of  the  canals,  ditches,  flumes,  chutes  and  all  other  property 
actually  used  and  useful  to  the  appropriation  and  furnishing 
of  such  water.  *  *  *  "  The  said  rates,  when  .so  fixed  by 
such  board,  shall  be  binding  and  conclusive  for  not  less  than 
one  year  next  after  their  establishment  and  until  established 
anew  or  abrogated  by  such  board  of  supervisors  as  hereinafter 
provided.     And   until   such    rates  shall   be  so  established  or 


546  IRRIGATION    IN    CALIFORNIA.  [§  355,  356 

after  they  shall  have  been  abrogated  by  such  board  of  super- 
visors, as  in  this  Act  provided,  the  actual  rates  established 
and  collected  by  each  of  the  persons,  companies,  associations 
and  corporations  now  furnishing,  or  that  shall  hereafter  fur- 
nish, appropriated  waters  for  sale,  rental  or  distribution  to  the 
inhabitants  of  any  of  the  counties  of  this  State  shall  be  deemed 
and  accepted  as  the  legally  established  rates  thereof. ' ' 

Section  six  provides  that  the  rates  if  found  to  be  unsatis- 
factory might  be  changed  by  the  board. 

The  Act  also  provided  for  a  record  of  the  rates  established; 
that  no  person  or  company  could  charge  rates  exceeding  those 
established  and  fixed  by  the  board;  and  the  liability  of  persons 
or  companies  to  a  recovery  of  the  whole  rate  collected  and  actual 
damages  where  the  charge  was  in  excess  of  the  rate  fixed .  And 
another  peculiar  feature  of  the  Act  was  a  provision  that  the 
company  should  be  compelled  to  sell  water  upon  a  tender  of  the 
rates  established.    The  text  upon  this  subject  reads  as  follows: 

"  Sec.  TO.  Every  person,  company,  association  and  cor- 
poration having  in  any  county  in  the  State  (other  than  in  any 
city,  city  and  county  or  town  therein)  appropriated  waters 
for  sale,  rental  or  distribution  to  the  inhabitants  of  such 
county,  upon  demand  thereof  and  tender  in  money  of  such 
established  water  rates,  shall  be  obliged  to  sell,  rent  or  dis- 
tribute such  water  to  such  inhabitants  at  the  established  rates 
regulated  and  fixed  therefor,  as  in  this  Act  provided,  whether 
so  fixed  by  the  board  of  supervisors  or  otherwise,  to  the  ex- 
tent of  the  actual  supply  of  such  appropriated  waters  of  such 
person,  company,  association  or  corporation  for  such  purposes. 
If  any  person,  company,  association  or  corporation  having 
water  for  such  use  shall  refuse  compliance  with  such  demand, 
or  shall  neglect,  for  the  period  of  five  days  after  such  demand, 
to  comply  therewith  to  the  extent  of  his  or  its  reasonable 
ability  so  to  do,  he  or  it  shall  be  liable  in  damages  to  the  ex- 
tent of  the  actual  injury  sustained  by  the  person  or  party  mak- 
ing such  demand  and  tender,  to  be  recovered  with  costs." 

§  356.  Eminent  Domain.— "  Section  ii.  Whenever  any 
person,  company,  association  or  corporation  shall  have  ac- 
quired the  right  to  appropriate  water  or  shall  have  acquired 


§356,357]  IRRIGATION    IN    CALIFORNIA.  .'17 

the  right  to  appropriate  such  water  in  this  State,  such 
person,  company,  association  or  corporation  may  proceed  to 
condemn  the  lands  and  premises  necessary  to  such  right-of- 
way  under  the  provisions  of  Title  VI I ^  of  Part  III.  of  the 
Code  of  Civil  Procedure  of  this  State,  and  amendments  made 
and  to  be  made  thereto:  and  all  the  provisions  of  said  code,  so 
far  as  the  same  can  be  made  applicable,  relating  to  the  con- 
demnation and  taking  of  property  for  public  uses  shall  be  ap- 
plicable to  the  provisions  of  this  Act." 

§357.  Same. —  Authorities    (Oiistriiiiii;    ('«Kle.  —  Section 

1238  of  the  Code  of  Civil  Procedure  of  California  provides 
as  follows:  "  Subject  to  the  provisions  of  this  title  the  right 
of  eminent  domain  may  be  exercised  in  iK-half  of  the  follow- 
ing public  uses:  *  *  *  canals,  ditches,  flumes,  aqueducts 
and  pipes  for  public  transportation  supplying  mines  and  farm- 
ing neighborhoods  with  water  and  draining  and  reclaiming 
lands,  and  for  floating  logs  and  lumber  on  streams  not  navi- 
gable." 

In  construing  the  above  section  the  Supreme  Court  of  Cali- 
fornia in  the  case  of  Lux  vs.  Haggin^  held:  that  the  riparian 
owner's  property  in  the  water  of  a  stream  may  (on  payment 
of  due  compensation  to  him)  be  taken  to  supply  "farming 
neighborhoods"  with  water.  And  Mr.  Justice  McKinstry, 
in  rendering  the  opinion  of  the  Court  upon  this  subject,  said: 
"We  are  not  prepared  to  say  that  the  supply  of  water  to 
'  farming  neighborhoods  '  for  irrigation  (and  the  Code  evi- 
dently means  for  irrigation)  may  not  be  for  public  use.  In- 
deed, in  view  of  the  climate  and  arid  soil  in  parts  of  the  State 
(for  this  object  climate  and  soil  may  properly  be  considered) 
it  is  safe  to  say  that  the  supply  for  such  use  may  be  that  which 
the  Legislature  has  decided  it  to  be— a  public  use.  The  judg- 
ment of  the  Legislature  that  it  is  such  ouglit  not,  therefore, 
to  be  disturbed  l)y  the  Courts. 

"  It  is  apparent  that  in  deciding  whether  a  use  was  public 
the  Legislature  was  not  limited  1)>  the  mere  number  of  per- 
.sons  to  be  immediately  benefitted  as  opposed  to  those  from 

1  69  Cal.  30.J,  309;  10  Pac.  Rep.  697. 


548  IRRIGATION    IN    CALIFORNIA.  [§  357 

whom  property  is  taken.  It  must  happen  that  a  public  use 
(as  of  a  particular  wagon  or  railroad)  will  rarelj-  be  directly 
enjoyed  by  all  the  denizens  of  the  State,  or  of  a  county  or 
city;  and  rarely-  that  all  within  the  smallest  political  sub- 
division can  as  a  ffftt  immediately  enjoy  every  public  use. 
Nor  need  the  enjoyment  of  a  public  use  be  biconditional.  A 
citizen  of  a  municipality  to  which  water  has  been  brought  by 
a  person  or  corporation  which,  as  agent  of  the  government 
has  exercised  the  power  of  eminent  domain,  can  demand 
water  only  on  pajanent  of  the  established  rate  and  on  com- 
pliance with  reasonable  rules  and  regulations. 

"And  while  the  Court  will  hold  the  use  private  where  it 
appears  that  the  government  or  public  ca7inot  have  any  inter- 
est in  it,  the  Legislature,  in  determining  the  expediency  of 
declaring  a  use  public,  may  no  doubt  properly  take  into  con- 
sideration all  the  advantages  to  follow  from  such  action,  as 
the  advancement  of  agriculture,  the  encouragement  of  mining 
and  the  arts,  and  the  general  though  indirect  benefits  derived 
to  the  people  at  large  from  the  dedication.     *     *     * 

"The  words  'farming  neighborhoods'  are  somewhat  in- 
definite; the  idea  sought  to  be  conveyed  b}'  them  is  more 
readily  conceived  than  put  into  accurate  language.  Of  course 
'  farming  neighborhood  '  implies  more  than  one  farm;  but  it 
would  be  difl&cult  to  saj-  that  any  certain  number  is  essential 
to  constitute  such  a  neighborhood.  The  vicinage  may  be 
nearer  or  more  distant,  reference  being  had  to  the  populous- 
ness  or  sparseness  of  population  of  the  surrounding  country; 
but  the  farmers  must  be  so  near  to  each  other — relatively  to 
the  surrounding  settlers— as  to  make  what  in  popular  parlance 
is  known  as  a  '  farming  neighborhood.' 

"A  very  exact  definition  of  the  word  is  not,  however,  of 
paramount  importance.  The  main  purpose  of  the  statutes  is 
to  provide  a  mode  by  which  the  State  or  its  agent  may  con- 
duct water  to  arable  lands  where  irrigation  is  a  necessity  on 
payment  of  due  compensation  to  those  from  whom  the  water 
is  diverted. 

"  The  same  agent  of  the  State  may  take  water  to  more  than 
one  farming  neighborhood. 

"  It  must  always  be  borne  in  mind  that  under  the  codes  no 


§357]  lUKlGATioN    IN   .  v  i  n*  •!;  \  i  A.  549 

man  (^or  set  of  men )  can  take  anulln.r  s  properix  i'>r  ins  ou-u 
exclusive  use. 

"  Whoever  attempts  to  condemn  the  private  right  must  be 
prepared  to  furnish  (to  the  extent  of  the  water  he  consumes 
and  pays  for)  every  individual  of  the  community  or  communi- 
ties, farming  neighborhood  or  farming  neighborhoods,  to 
which  he  conducts  it,  the  consumers  being  required  to  pay 
reasonable  rates  and  being  subjected  to  reasonable  regula- 
tions. And  whether  the  quantity  sought  to  be  condemned  is 
reasonably  necessary  to  supply  the  public  use  in  a  neighbor- 
hood or  neighborhoods  must  be  determined  by  the  Court  in 
which  the  proceedings  are  brought  for  condemnation  oJ  the 
private  right. 

"  In  proceedings  brought  to  secure  the  appropriation  «>f  pri- 
vate property  to  a  public  use,  as  in  all  other  legal  pn^ceed- 
ings,  a  pretense  cannot  be  set  up  as  a  fact — a  sham  for  a 
reality.  The  facts,  it  must  be  presumed,  will  always  be  fairly 
determined  in  each  particular  case.  *  *  *  it  may  be  inti- 
mated that  the  Court  should  avoid  too  narrow  a  view  of  the 
important  question  involved.  It  may  be  suggested  that  judges 
in  this  State  should  rise  to  the  appreciation  of  the  fact  that 
the  physical  conditions  here  existing  require  an  'appropriator' 
to  be  authorized  to  deprive,  without  indemnification,  all  the 
lower  riparian  proprietors,  however  numerous,  on  the  course 
of  a  non-navigable  stream  of  every  natural  advantage  con- 
ferred on  their  lands  by  the  running  water.  .X  '  public 
policy  '  has  been  appealed  to,  which  has  not  found  its  expres- 
sion in  the  statutes  of  the-  State,  but  which  rests  apparently 
on  the  political  maxim  '  the  greatest  good  to  the  greatest 
number,' on  the  claim  that  by  permitting  such  deprivation 
of  the  enjoyment  of  the  stream  by  the  riparian  proprietors 
more  persons  or  a  larger  extent  of  territory  will  be  benefitted 
by  the  waters.  The  proposition  is  simply  that  l)y  imperative 
necessity  the  right  to  take  or  appropriate  water  should  be 
held  paramount  to  every  other  right  with  whiih  it  may  o>ine 
in  contact." 

Judge  Cooley  upon  this  subject  says:  "  The  (luestioii.  what 
is  a  public  use,  is  always  a  question  of  law.  Deference  will 
be  paid  to  the   legislative   judgment,  as  expressed  iti   enact- 


550 


IRRIGATION    IN    CALIFORNIA.  [§  357,  358 


ments  providing  for  tlie  appropriation  of  property,  but  it  will 
not  be  conclusive."  ^ 

lY.  Calil'oruia  Irrigatiou  District  Law. 

§  358.  "  Wright  Law." — Probably  the  most  famous  and  ela- 
borate statutory  law  in  existence  upon  this  subject  is  that 
of  California  authorizing  the  formation  of  public  corporations 
called  "  Irrigation  Districts."     This  law  is  familiarly  known 


1  Cooley's  Const.  Lim.  536,  see 
also  §  532;  see  also  St.  Helena  vs. 
Forbes,  62  Cal.  182;  Gardner  vs. 
Newberg,  2  John's  Ch.  162;  7  Am. 
Dec.  536;  see  also  Beekman  vs. 
Railroad,  3  Paige,  45-73;  Wilson 
vs.  Blackbird  Creek  Marsh  Co.,  2 
Peters,  245;  Railroad  Co.  vs.  Stock- 
ton, 41  Cal.  147;  Aliso  W.  Co.  vs. 
Baker,  95  Cal.  268;  30  Pac.  Rep. 
537;  Lake  Pleasanton  W.  Co.  vs. 
Contra  Costa  Q.  Co.,  67  Cal.  659; 
Amador  B.  M.  Co.  vs.  Davit,  73 
Cal.  482;  15  Pac.  Rep.  74;  Hodgdon 
vs.  Southern  Pac.  Ry.  Co.,  75  Cal. 
642. 

See  also  the  recent  case  of  Lind- 
say Irrigation  Co.  vs.  William 
Mehrtens  et  al.,  97  Cal.  676,  where 
it  was  held  that  Section  1238  of 
the  Code  of  Civil  Procedure  giv- 
ing the  right  of  eminent  domain 
for  the  construction  of  canals  and 
ditches  for  supplying  farming 
neighborhoods  with  water  is  a 
legislative  declaration  that  the  use 
is  a  public  use  and  the  declaration 
must  be  regarded  as  falling  within 
the  scope  of  legislative  duty  in 
providing  for  the  public  welfare. 

It  was  also  held  in  the  same  case 
that  the  term  "  farming  neighbor- 
hood," as  used  in  the  code  provi- 
sion, is  an  indefinite  expression, 
and  whether  it  can  be  applied  to 
any  particular  tract  of  land  must 
be  determined   by   the   evidence; 


and  the  term  "public  use"  is 
also  an  expression  of  indefinite 
signification,  and  its  application 
to  the  facts  of  any  particular  case 
is  to  be  determined  from  the  evi- 
dence. Also  that  a  "farming 
neighborhood"  is  a  region  in 
which  there  are  several  tracts  of 
farming  land  with  proximity  of 
location,  and  which  can  be  re- 
garded as  a  whole  with  reference 
to  some  common  interests,  al- 
though they  are  distinct  in 
boundaries  and  held  in  individual 
proprietorship.  Its  extent  need 
not  be  characterized  by  fixed 
boundaries,  nor  is  its  existence  de- 
termined by  any  definite  number 
of  proprietors,  and  while  a  tract 
of  land,  though  large  in  extent, 
might  if  held  in  different  proprie- 
torship constitute  a  neighbor- 
hood, yet  it  would  not  if  it  were 
held  in  single  ownership.  It  was 
not  necessary  in  order  to  render 
the  suppljdng  of  water  to  a  farm- 
ing neighborhood  a  public  use  that 
the  entire  public  shall  enjoy  the 
use,  or  even  that  it  be  capable 
thereof,  but  the  use  must  be 
capable  of  enjoyment  by  all  who 
may  be  within  the  neighborhood, 
and  there  must  be  within  that 
neighborhood  so  great  a  number 
of  the  entire  public  as  to  destroy 
its  character  as  a  private  use. 


§358]  IRRIGATION    IN    CALIFORNIA.  551 

as  the  "Wright  Law;"  and  the  purpose  of  its  enactment  asset 
forth  in  the  title  of  the  Act  is  as  follows:  "An  Act  to  pro- 
vide for  the  organization  and  government  of  irrigation  dis- 
tricts, and  to  provide  for  the  acquisition  of  water  and  other 
property-,  and  for  the  distribution  of  water  thereby  for  irriga- 
tion purposes."  ' 

Owing  to  the  thickly  populated  condition  of  the  State  of 
California  and  its  necessities  that  State  has  evolved  an  ad- 
ministrative policy  which,  while  based  upon  the  principle  of 
State  or  community  ownership  of  natural  waters,  provides 
also  for  the  ownership  by  the  people  interested  of  all  the  works 
needed  in  irrigation  and  distribution.  It  is  a  voluntary  mat- 
ter initiated  by  action  through  the  polls  by  the  people  desir- 
ing to  form  a  district. 

And  as  the  California  district  law  has  been  copied  by  various 
States  throughout  the  arid  region  and  has  been  made  the 
basis  of  all  irrigation  district  laws,  with  the  single  exception 
of  the  law  of  Utah  Territory,  it  seems  advisable  to  give  a 
complete  abstract  of  the  law  as  it  stands  amended,  even  at 
the  expense  of  using  considerable  space.  We  will  incorporate 
the  amendments  in  the  body  of  the  law.  so  as  to  give  it  as  it 
stands  to-day,  indicating  in  the  notes  when  the  amendments 
were  made  and  where  they  can  be  found. 

l.\ctof   March  7,    1887;   Statute  entire     supplenieiital      .\ct      was 

1887,  page  29;  Vol.    5,    Deering's  anieiided    by    an      .\ct    approved 

Code,  page  285-294.  March  25,   1893;   Stat.    1893,  page 

The    original    "Wright    Law"  516. 

has  been  amended   from   time  to  Act  approved    March   16,    1889; 

time  by    subsequent   Acts   of  the  Stat.  1S89,  j)age  212;  5  Deering,  299. 

Legislature,  both  as  to  the  original  .\ct   ai)proved    March   10,    1891; 

sections     and     by      supplemental  Slat.  1 89 1,  page  53. 

enactments.       The    following  are  .\ct   approved    March    20,    1S91; 

references      to      the       respective  Slat.  1891,  page  142. 

amendatory      and      supplemental  .\ct   approved    March    20,    1891; 

Acts:  Stat.  1891,  page  147. 

Act  approved  Feb.  16,  18S9;  Slat.  Act   approved    March    31,   1891; 

1889,  page  15;  5  Deering,  294.  Stat.  1891,  page  244. 

Act  approved  Feb.  16,  1889;  Stat.  Act   ai)proved    March    11,   1893; 

1889,  page  15;  5  Deering,  295.  Stat.  1893,  page  175. 

Act  approved  Feb.  16,  1889;  Slat.  Act   approved    March    23,    1893; 

1889,  page  21;  5  Deering,  297.  This  Stat.  1893.  page  276. 


552  IRRIGATION    IX    CALIFORNIA.  [§359,360 

§  359.  Organization  of  Irrigation  Districts. — "  Section  i. 
Whenever  fift}-  or  a  majority  of  the  holders  of  title  or  evi- 
dence of  title  to  lands  susceptible  of  one  mode  of  irrigation 
from  a  common  source,  and  b}^  the  same  systems  of  works  de- 
sire to  provide  for  the  irrigation  of  the  same,  they  may  pro- 
pose the  organization  of  an  irrigation  district,  under  the 
provisions  of  this  Act,  and  when  so  organized  such  districts 
shall  have  the  powers  conferred,  or  that  may  hereafter  be 
conferred,  by  the  law  of  such  irrigation  districts.  The  equal- 
ized county  assessment  rolls,  next  preceding  the  presentation 
of  a  petition  for  the  organization  of  an  irrigation  district 
under  the  provisions  of  this  Act,  shall  be  sufficient  evidence 
of  title  for  the  purposes  of  this  Act."' 

§  3(>0.  Petition  to  Board  of  Supervisors. — What  to  Con- 
tain.— Lands  that  must  be  Included. — Notice  of  Election. 
— Ballots  what  to  Contain.  —  Section  2  of  said  Act  as 
amended  reads  as  follows: 

"Sec.  2.  A  petition  shall  first  be  presented  to  the  Board 
of  Supervisors  of  the  county  in  which  the  lands,  or  the  great- 
est portion  thereof,  are  situated,  signed  by  the  required  num- 
ber of  holders  of  title  or  evidence  of  title,  of  such  proposed 
district  evidenced  as  above  provided,  which  petition  shall  set 
forth  and  particularly  describe  the  proposed  boundaries  of 
such  district,  and  shall  pray  that  the  same  shall  be  organized 
under  the  provisions  of  this  Act.  The  petitioners  must  accom- 
pany the  petition  with  a  good  and  sufficient  bond  to  be  ap- 
proved by  the  said  Board  of  Supervisors,  in  double  the  amount 
of  the  probable  cost  of  organizing  such  district,  conditioned 
that  the  bondsmen  will  pay  all  the  said  costs  in  case  said 
organization  shall  not  be  effected.  Such  petition  shall  be 
presented  at  a  regular  meeting  of  said  board,  and  shall  be 
published  at  least  two  weeks  before  the  time  at  which  the 
same  is  to  be  presented  in  some  newspaper  printed  and  pub- 
Act  approved  March  23,  1893;  Act  approved  March  25,  1893; 
Stat.  1893,  page  295.                                  Stat.  1893,  page  520. 

Act  approved   March    25,   1893;  lAs  amended   by  Act  approved 

Stat.  1893,  page  516.  March   20,   1891;  Stat.    1891,  page 

142,  Sec.  I. 


§360] 


IRRIGATION    IN    CALIFORNIA. 


ir>3 


lished  in  the  county  where  said  petition  is  presented,  together 
with  a  notice  stating  the  time  of  the  meeting  at  which  the 
same  will  be  presented,  and  if  any  portion  of  said  proposed 
district  lie  within  another  county,  or  counties,  then  said 
petition  or  notice  shall  be  published  in  a  newspaper  published 
in  each  of  said  counties.  When  such  petition  is  presented 
the  said  Board  of  Supervisors  shall  hear  the  same,  and  may 
adjourn  such  hearing  from  time  to  time  not  exceeding  four 
weeks  in  all;  and  on  the  final  hearing  may  make  such  changes 
in  the  proposed  boundary  as  they  may  find  to  be  proper  and 
shall  establish  and  define  such  boundaries;  provided,  that  said 
board  shall  not  modify  said  boundaries  so  as  to  except  trom 
the  operation  of  this  Act  any  territory  within  the  boundaries 
of  the  district  proposed  by  said  petitioners  which  is  susceptible 
of  irrigation  by  the  same  system  of  works  applicable  to  the 
other  lands  in  such  proposed  district:  nor  shall  any  lands 
which  will  not,  in  the  judgment  of  said  board,  be  benefitted 
by  irrigation  by  said  system  be  included  within  such  district; 
provided,  that  any  person  whose  lands  are  susceptible  of  irri- 
gation from  the  same  source  may  in  the  discretion  of  the 
board,  upon  application  of  the  owner  to  said  board,  have  such 
lands  included  in  said  district.  •    Said  board  shall  also  make 


1  On  February-  i6,  18S9,  an  .\ct 
■was  approved,  amendatory  and 
supplemental  to  the  Act  approved 
March  7,  1887,  which  provided  for 
a  change  of  the  boundaries  of  irri- 
gation districts  by  including  other 
lands  therein.  See  Stat.  1S89, 
page  18;  5  Deering,  page  295. 
Section  i  of  which  Act  provided: 
That  the  l>oundaries  of  any  irri- 
gation districts  now  or  hereafter 
organized  under  the  provisions  of 
the  Act  approved  March  7,  1887, 
"maybe  changed  in  the  manner 
herein  prescribed,  but  such  change 
of  the  boundaries  of  a  district 
shall  not  inijjair  or  affect  its  or- 
ganization, or  its  rights  in  or  to 
property,  or  any  of  its   rights  or 


privileges  of  whatsoever  kind  ur 
nature;  nor  shall  it  affect,  impair 
or  discharge  any  contract,  obliga- 
tion, lien  or  charge  for  or  upon 
which  it  was  or  might  become 
liable  or  chargeable  hail  such 
change  of  its  bounilaries  not  been 
made." 

The  Act  provides  thai  the  hold- 
ers of  title  may  petition  for  cliange 
of  boundaries  as  follows: 

"  Sec.  2.  The  holder  or  liolders 
of  title,  or  eviilence  of  title,  rep- 
resenting one-half  or  u'ore  i>f  any 
body  of  lands  ailjacciit  t<»  the 
boundary  of  an  irrigation  district, 
which  are  contiguous,  iind  which 
taken  together  constitute  one 
tract  of    land,  may    tile    willi  the 


554 


IRRIGATION    IN    CALIFORNIA. 


[§360 


an  order  dividing  said  district  into  five  divisions,  as  nearly- 
equal  in  size  as  may  be  practical,  which  shall  be  numbered 
first,  second,  third,  fourth  and  fifth,  and  one  director,  who 
shall  be  a  freeholder  in  the  division  and  an  elector  and  resi- 
dent of  the  district,  shall  be  elected  by  each  division;  pro- 


Board  of  Directors  of  said  district 
a  petition  in  writing  praying  that 
the  boundaries  of  said  district 
may  be  so  changed  as  to  include 
therein  said  lands.  The  petition 
shall  describe  the  boundaries  of 
said  parcel  or  tract  of  land,  and 
shall  also  describe  the  boundaries 
of  the  several  parcels  owned  by 
the  petitioners  if  the  petitioners 
be  the  owners  respectively  of  dis- 
tinct parcels,  but  such  descriptions 
need  not  be  more  particular  than 
they  are  required  to  be  when  such 
lands  are  entered  by  the  county 
assessor  in  the  assessment  book. 
Such  petition  must  contain  the  as- 
sent of  the  petitioners  to  the  in- 
clusion within  said  district  of  the 
parcels  or  tracts  of  land  described 
in  the  petition,  and  of  which  said 
petition  alleges  they  are  respect- 
ively the  owners.  And  it  must  be 
acknowledged  in  the  same  manner 
that  conveyances  of  land  are  le- 
quired  to  be  acknowledged." 

The  Act  also  provided  for  the 
publication  of  the  petition,  the 
hearing  of  the  same  and  also  that 
the  petitioners  may  be  assessed  as 
a  condition  precedent  to  the  grant- 
ing of  the  same;  that  the  petition- 
ers shall  severally  pay  to  such  dis- 
trict such  sum  as  said  petitioners 
would  have  been  required  to  pay 
to  such  districts  as  assessments 
had  such  land  been  included  in 
such  districts  at  the  time  the  same 
was  originally  formed.  The  Act 
also  provided  that  upon  the  hear- 


ing, if  the  Board  of  Directors  shall 
not  deem  it  for  the  best  interest 
of  the  district  that  a  change  of  its 
boundaries  be  made  so  as  to  in- 
clude the  land  mentioned  in  the 
petition,  the  petition  may  be  re- 
jected; on  the  other  hand,  if  the 
board  deem  it  for  the  best  interest 
that  the  boundaries  be  changed,  it 
may  order  the  change  so  as  to  in- 
clude therein  the  lands  mentioned 
in  said  petition  or  some  part 
thereof.  Provided  that  no  person 
interested  in  said  district  shall 
show  cause  in  writing  why  the 
proposed  change  should  not  be 
made.  But  if  any  person  inter- 
ested in  said  district  shall  show 
cause  why  such  boundaries  should 
not  be  changed  the  Act  provides 
for  an  election  to  determine 
whether  the  boundaries  shall  be 
changed  or  not.  Upon  change  of 
boundaries  of  a  district  being 
made  a  copy  of  the  order  of  the 
Board  of  Directors  ordering  such 
change  shall  be  filed  for  record  in 
the  recorder's  office  in  each 
county  within  which  are  situated 
any  of  the  lands  of  the  district, 
and  thereupon  the  district  shall 
be  and  remain  an  irrigation  dis- 
trict as  fully  and  to  every  intent 
and  purpose  as  if  the  lands  which 
are  included  in  the  district  by  the 
change  of  boundaries  had  been 
included  therein  at  the  original 
organization  of  the  district. 

Also  on  February   i6,    1889,  was 
passed  an  Act  amendatory  of  and 


§360] 


IRlilUATION    IX    fALIFOUXlA. 


vided,  that  if  a  majority  of  the  holders  of  title  or  evidence  of 
title,  evidenced  as  above  provided,  petition  for  the  formation 
of  a  district,  the  Board  of  Supervisors  may,  if  so  requested  in 
the  petition,  order  that  there  may  be  either  three  or  five  di- 
rectors, as  said  board  may  order,  for  such  district,  ami  that 
they  may  be  elected  by  the  district  at  large.  Said  Hoard  of 
Supervisors  shall  then  give  notice  of  an  election  to  be  held 
in  such  proposed  district  for  the  purpose  of  determining 
whether  or  not  the  same  shall  be  organized  under  the  provi- 
sions of  this  Act.  Such  notice  shall  describe  the  boundaries 
so  established,  and  shall  designate  a  name  for  such  proposed 
district,  and  said  notice  shall  be  published  for  at  least  three 
weeks  prior  to  such  election  in  a  newspaper  published  within 


supplemental  to  the  ."^ct  approved 
March  7,  1S87,  providing  for  the 
exclusion  of  certain  lands  within 
any  such  irrigation  districts.  See 
Stat.  1889,  p.  21;  5  Deering,  297. 
This  Act  was  also  amended  by  an 
Act  approved  March  25,  1893  (see 
Stat.  1893,  page  516),  and  the  sub- 
stance of  which  .\ct  as  amended  is 
as  follows: 

Section  i  provides  that  tracts 
of  land  which  were  included 
within  the  boundaries  of  an  irri- 
gation district  at  or  after  its  or- 
ganization may  be  excluded  there- 
from. 

Sec.  2  provides  that  the  owners 
of  lands  included  within  the  dis- 
trict may  jointly  or  severally  file 
with  the  Board  of  Directors  of  the 
district  a  petition  praying  that 
such  tracts  may  be  excluded  from 
said  district,  and  stating  the 
grounds  and  reasons  upon  which 
it  is  claimed  that  such  lands  should 
be  excluded. 

Sees.  3  and  4  provide  lliat 
notices  of  a  hearing  of  a  jjctilion 
must  be  published,  and  the  time 
must  be  specified  in  the  notice  at 


which  all  per.sons  interested  shall 
be  recjuired  to  show  cause  why  the 
change  of  the  boundaries  of  the 
district  as  proposed  in  said  peti- 
tion shall  not  be  made.  The  Hoard 
of  Directors  at  the  time  ami  place 
mentioned  in  the  notice  shall  pro- 
ceed to  hear  the  petition  and  all 
evidence  or  proof  that  may  or 
shall  be  introduced  by  or  on  be- 
half of  the  petitioners,  and  all  ob- 
jections to  such  petition  that  may 
be  presented  in  writing.  The 
failuie  of  any  person  interested  in 
said  district  to  show  cause  in  writ- 
ing why  said  tract  should  not  be 
excluded  from  the  district  shall  be 
deemed  as  an  assent  by  him  to  the 
exclusion  of  such  tract. 

Sep.  5  i)rovides  that  it  shall  be 
the  duty  f)f  the  board,  if  the  evi- 
dence fail  to  sustain  the  ])etition. 
to  order  that  the  jjetition  be  ile- 
nie<i;  but  on  the  other  hand,  if  the 
allegations  of  the  petition  are 
]iroven,  it  shall  be  the  <hity  of  the 
board  to  onlcr  that  the  lands  men- 
tioned be  exilude<l  from  said  <lis- 
tricl. 


556  IRRIGATION    IN    CALIFORNIA.  [i$  360,  361 

said  county;  and  if  any  portion  of  such  proposed  district  lie 
within  another  county  or  counties,  then  said  notice  shall  be 
published  in  a  newspaper  published  within  each  of  said  coun- 
ties. Such  notice  shall  require  the  electors  to  cast  ballots, 
which  shall  contain  the  words  'Irrigation  District — Yes,' 
or  '  Irrigation  District — No,'  or  words  equivalent  thereto,  and 
also  the  names  of  persons  to  be  voted  for  to  fill  the  various 
elective  offices  hereinafter  prescribed.  No  person  shall  be 
entitled  to  vote  at  any  election  held  under  the  provisions  of 
this  Act  unless  he  shall  possess  all  the  qualifications  required 
of  electors  under  the  general  election  laws  of  this  State."  ' 

§  3G1.  Election.— Statute  of  Limitjitions.— Lands  to  be 
in  only  One  District.— Election  Precincts —Number  of 
Directors. — Sec.  3.  This  section  provides  for  the  holding  of 
the  election  mentioned  above  as  nearly  as  practicable  in  ac- 
cordance with  the  general  laws  of  the  St2ite;  prozn'ded,  that  no 
particular  form  of  ballot  shall  be  required.  It  also  provides 
that  the  Board  of  Supervisors,  after  such  an  election  has  been 
held,  shall  meet  and  proceed  to  canvass  the  votes  cast  thereat, 
and  if  upon  such  canvass  it  appear  that  two-thirds  of  all  the 
votes  cast  are  "  Irrigation  District — Yes,"  the  board  shall  by 
an  order  entered  on  its  minutes  declare  such  territory  duly 
organized  as  an  irrigation  district,  and  shall  also  declare  the 
persons  receiving  respectively  the  highest  number  of  votes  for 
such  offices  to  be  duly  elected  to  such  offices.  The  section 
also  provides  that  no  action  shall  be  commenced  or  main- 
tained, or  defence  made,  affecting  the  validit}'^  of  the  organiza- 
tion, unless  the  same  shall  have  been  commenced  or  made 
within  two  years  after  the  making  and  entering  of  said  order. 
It  also  provides  that  a  copj^  of  such  order  must  be  imme- 
diately filed  for  record  in  the  office  of  the  county  recorder  of 
each  count}'  in  which  said  lands  are  situated;  and  from  and 
after  the  date  of  such  filing  the  organization  of  such  district 
shall  be  complete.  It  also  provides  for  dividing  the  district 
into  election  precincts,  and  that  the  number  of  directors  of 
such  district  shall  be  either  three  or  five.^ 

1  As  amended  by  Act  approved  2  As   amended  by  Act  approved 

March  20,  1891;  Stat.  1891,  page  March  20,  1891;  Stat.  1891,  page 
142,  Sec.  2.  143,  Sec.  3. 


^362,363]       iKUitJATiON   ix  ('alifoknia.  557 

§  3G'2.  Time  lor  Elei-lion,  ami  OlluTr*.  to  Uv   Ehuleil. 

Sec.  4  of  said  Act  as  amendetl  provides  for  the  following:  An 
election  shall  be  held  in  each  district  every  two  years  at  which 
an  Assessor,  a  Collector,  and  a  Treasurer  and  a  Board  of  Di- 
rectors for  the  district  shall  be  elected.  The  section  provides 
that  the  officers  elected  shall  take  and  subscribe  to  the  official 
oath  and  file  the  same  in  the  office  of  the  Hoard  of  Directors. 
It  also  provides  that  the  Assessor  shall  execute  an  official 
bond  in  the  sum  of  $5,000,  and  the  Collector  in  the  sum  of 
$20,000,  the  District  Treasurer  in  the  sum  of  550,000.  and 
each  member  of  the  Board  of  Directors  in  the  sum  of  55.000, 
which  said  bond  shall  be  approved  by  the  Judge  of  the  Su- 
perior Court  of  the  county  where  such  organization  iseffi.>cted, 
and  shall  be  recorded  in  the  office  of  the  County  Recorder 
thereof  and  filed  with  the  Secretary  of  the  board.' 

§363.  District  Elections.— Post i  111:  of  Notices.  l>ul it's 
of  Election  IJoard.- Time  of  Votini:.  MaiMier  of  Ceitify- 
ing  to  Ketunis.— ("anvassiiiir  lletiinis.  -Sections  5  to  9,  in- 
clusive, provide  for  the  posting  of  election  notices  in  three 
public  places  in  each  election  precinct  of  any  district,  ior  the 
time  and  place  of  holding  the  election;  for  the  appointment 
of  one  inspector  and  twojudges,  who  shall  constitute  a  Board 
of  Election  for  such  precinct.  Also  that  the  inspector  is  the 
chairman  of  the  election  board  and  may  administer  all  oaths, 
appoint  judges  and  clerks,  if  during  the  progress  of  the  elec- 
tion any  judge  or  clerk  should  cease  to  act;  and  the  general 
duties  of  the  Board  of  Election  for  the  general  conduct  of  the 
same.  Also  provisions  are  made  that  the  elections  shall  be 
conducted  as  nearly  as  possible  in  accordance  with  tlje  pro- 
visions of  the  statute  for  the  conduct  of  the  general  election; 
and  the  manner  of  certifying  and  canvassing  the  returns. 
The  canvass  must  be  made  in  public  and  by  opening  the 
returns,  and  estimating  the  vote  of  the  di.strict  for  each  per- 
son voted  for  and  declaring  the  result  thereof. 

Sec.  10  of  said  Act  as  amended  i)rovides  for  the   slateinenl 
of  the  result  of  the  election  and   lliat   the   Hoard  of  Ivlectors 

1  As  anieiiclcd  by  Act  approved  .March  20,  iS.^i.  .St.it.  iS^ji.  p.  lU,  Sec.  4. 


558  IRRIGATION    IX    CALIFORNIA.         [§363-365 

must  declare  elected  the  person  having  the  highest  number 
of  votes  given  for  each  office.  The  Secretary  of  the  board 
must  then  make  out  and  deliver  to  such  person  a  certificate  of 
election.^ 

§  364.  Organization. — Powers  and  Duties  of  the  fioard. — 
Ratio  of  Distribution  of  Water. — "Sec.  ii.  On  the  first 
Tuesday  in  March  next  following  their  election,  the  Board  of 
Directors  shall  meet  and  organize  as  a  board,  elect  a  Presi- 
dent from  their  number  and  appoint  a  Secretary,  who  shall 
each  hold  office  during  the  pleasure  of  the  board.  The  board 
shall  have  the  power  and  it  shall  be  their  duty  to  manage  and 
conduct  the  business  and  affairs  of  the  district,  make  and 
execute  all  necessary  contracts,  employ  and  appoint  such 
agents,  officers  and  employes  as  may  be  required,  and  prescribe 
their  duties;  establish  equitable  by-laws,  rules  and  regulations 
for  the  distribution  and  use  of  water  among  the  owners  of 
said  lands  and  generally  to  perform  all  such  acts  as  shall  be 
necessary  to  fully  carry  out  the  purposes  of  this  Act.  The 
said  by-laws,  rules  and  regulations  must  be  printed  in  con- 
venient form  for  distribution  in  the  district.  And  it  is 
hereby  expressly  provided  that  all  waters  distributed  for  irri- 
gation purposes  shall  be  apportioned  ratably  to  each  land 
owner  upon  the  basis  of  the  ratio  which  the  last  assessment 
of  such  owner  for  district  purposes  within  said  district  bears 
to  the  whole  sum  assessed  upon  the  district;  provided,  that  any 
land  owner  may  assign  the  right  to  the  whole  or  any  portion 
of  the  waters  so  apportioned  to  him."  ^ 

§  365.  Meetings  of  the  Doard. — Acquisition  of  Lands  and 
Water  Rights. — Dams  and  Reservoirs. — Sec.  12  of  the  Act 
as  amended  provides  as  follows:  That  the  Board  of  Directors 
shall  hold  a  regular  monthly  meeting  in  their  office,  and  such 
special  meetings  as  may  be  required  for  the  transaction  of 
business;  also  that    all    meetings  must  be  public,  and  three 

1  As  amended  by  Act  approved  2  As  amended  by  Act  approved 

Feb.  i6,  1889;  Stat.  1889,  page  15;  March  20,  1891;  Stat.  1891,  page 
5  Deering,  294.  145,  Sec.  5. 


§365,366]  IRRIGATION    IN    CALIFORNIA.  r>59 

members  shall  constitute  a  quorvim;   hut  <>n  all  (lucstions  re- 
quiring a  vote  there  shall  be  a  concurrence  of  at  least  three 
members  of  the  board.     All    records  "t>f  the   board   shall  be 
open  to  the  inspection  of  any  elector  during  business  hours. 
The  power  given  to   the  board  to  acquire   property    for  the 
purposes  of  the  Act  is  as  follows:     "  The  board  and  its  agents 
and  employes  shall  have  the  right  to  enter  upon  any  land  to 
make  surveys,  and  may  locate  the  necessary  irrigation  works 
and   the   line  for   any   canal   or   canals,    and    the    necessary 
branches  for  the  same,  on  any  lands  which  may  be  deemed 
best  for  such  location.     Said  board  shall  also  have  the  right 
to  acquire  by  purchase  or  condemnation  or  other  legal  means 
all  lands  and  water  and  -water  rig /its  and  other  property  neces- 
sary for   the   construction,  use,  supply,  maintainance,  repair 
and  improvements  of  said  canal  or  canals  and  works,  includ- 
ing canals  and  works  constructed  and   being  constructed  by 
private  owners,  lands  for  reser\'oirs  for  the  storage  of  needful 
waters,  and  all  necessary  appurtenances.     In  case  of  purchase 
the  bonds  of  the  district  hereinafter  provided  for  may  be  used 
at  their  par  value   in  payment;  and  in  ca.se  of  condenniation 
the  board  shall  proceed  in  the  name  of  the  di.strict,  under  pro- 
visions of  Title   7,   Part  3,  of  the    Code  of  Civil   Procedure. 
Said  board  may  also  construct  the  necessary  dams,  reservoirs 
and  works  for  the  collection  of  water  for  said  district,  and  do 
any  and  every  lawful  act  necessary  to  be  done  that  sufficient 
water  may  be  furnished    to  each  land  owner  in  said  district 
for  irrigation   purposes.     The  use  of  all   water   required  for 
irrigation  of  the  lands  of  any  district   formed  under  the  pro- 
visions of  the  Act,  together  with  the  rights-of-way  for  canals 
and   ditches,  sites  for  reservoirs,  and   all    other  property  re- 
quired in    fully   carrying  out    the  provisions  of  this  Act,  is 
heieby  declared  to  be  a  public  use,  subject  to  the  regulations 
and  control  of  tlie  State,  in  the  manner  prescribed  by  law."  > 

§  3()().  Title  U)  l*r(»|><'ilv  .Vnniiml.     Powers  of  IJoard  in 

Suits  sit  Law  or  in  Eqiiit.v.-    "  Scr.    i.v  Tlie  k-Kal    title  to 
all  property  acquired  under  the   provisions  of  this  Act  shall 

1  As  amen<le<l  l.y  Acl  approvc-.l  Maul.  2u,  iHc^i;  Slat.    i8yi.  pn^c  145. 
Sec.  6. 


560  IRRIGATION    IX    CALIFORNIA.  [§366,367 

immediatel}^  and  by  operation  of  law  vest  in  such' irrigation 
district,  and  shall  be  held  by  such  district  in  trust  for,  and  is 
hereby  dedicated  and  set  apart  to  the  uses  and  purposes  set 
forth  in  this  Act.  And  said  board  is  hereby  authorized  and 
empowered  to  hold,  use,  acquire,  manage,  occupy  and  possess 
said  property  as  herein  provided." 

"Sec.  14.  The  said  board  is  herebj^  authorized  and  em- 
powered to  take  conveyances  or  other  assurances  for  all  prop- 
erty acquired  bj^  it  under  the  provisions  of  this  Act  in  the 
name  of  such  irrigation  district,  to  and  for  the  uses  and  pur- 
poses herein  expressed,  and  to  institute  and  maintain  any 
and  all  actions  and  proceedings,  suits  at  law  or  in  equity, 
necessary  or  proper  in  order  to  fully  carry  out  the  provisions 
of  this  Act,  or  to  enforce,  maintain,  protect  or  preserve  any 
and  all  rights,  privileges  and  immunities  created  by  this  Act 
or  acquired  in  pursuance  thereof.  And  in  all  Courts,  actions, 
suits  or  proceedings  the  said  board  may  sue,  appear  and  de- 
fend, in  person  or  b}'  attorneys,  in  the  name  of  such  irrigation 
districts." 

§  367.  Issuance  of  Bonds. — Speeijil  Election  For. — Bonds 
how  to  be  Paid. — Assessments. — Sec.  15  as  amended  pro- 
vides that  whenever  the  construction  fund  has  been  exhausted 
by  expenditures  authorized  in  the  Act,  and  the  board  deem  it 
necessary  or  expedient  to  raise  additional  monej'  for  said 
purposes,  they  may  estimate  and  determine  the  amount  of 
money  necessary  to  be  raised,  and  call  a  special  election  at 
which  shall  be  submitted  the  question  whether  or  not  the 
bonds  of  said  district  in  the  amount  as  determined  shall  be 
issued.  Notices  of  such  election  must  be  given,  specifying 
the  time  of  holding  the  election  and  the  amount  proposed  to 
be  issued.  At  such  election  the  ballots  shall  contain  the 
words,  "Bonds — Yes,"  or  "Bonds — No,"  or.  words  equiva- 
lent thereto.  If  a  majority  of  the  votes  cast  are  in  favor  of 
the  bonds  the  Board  of  Directors  shall  cause  bonds  in  said 
amount  to  be  issued;  but  if  the  majorit}^  of  the  votes  cast  are 
against  the  issuance  of  bonds  the  result  of  such  election  shall 
be  so  declared  and  entered  of  record;  and  whenever  thereafter 
the  board  in  its  judgment  deem  it  for  the  best  interest  of  the 


^367.368]  lUKUiATION    in    rALIKoUNIA.  ."iC)! 

district  that  the  question  of  the  issuance  of  bonds  shall  again 
be  submitted  to  the  electors  it  may  submit  such  questions  in 
the  same  manner  as  at  such   previous  election.     The  bonds 
shall  be  payable  in   gold  coin  of  the   United    States  in  ten 
series;  the  first  series  payable  at    the   expiration    of  eleven 
years,  and  the  last  at  the  expiration  of  twenty  years,  and  the 
bonds  shall  bear  interest  at  the  rate  of  six   per  cent,  per  an- 
num, payable  semi-annually.     The  denomination  of  the  bonds 
shall  be  of  not  less  than   one  hundred  dollars,  nor  more  than 
five  hundred  dollars  each,  and  shall  be  negotiable  in  form. 
Special  assessments  are  provided  for  as   follows:     "  In  case 
the  money  raised  by  sale  of  all  bonds  issued  be  insufficient  for 
the  completion  of  the  plan  of  canal   and  works  adopted  and 
additional    bonds   be  not   voted,  it  shall  be  the  duty  of  the 
Board  of  Directors  to  provide  for  the  completion  of  said  plan 
by  levy  of  assessments  therefor.     It  shall   be  lawful   for  any 
district  which  has  heretofore  issued  bonds  under  the  law  then 
in  force  to  issue  in  place  thereof  an  equal  amount  of  bonds  in 
accordance  with  this  amendment,  and  to  sell  the  same  or  any 
part  thereof,  as  hereinafter  provided,  or  exchange  the  same 
or  any  part  thereof  with  the  holders  of  such  previously  issued 
bonds  which  may  be  outstanding  upon  such  terms  as  may  be 
agreed    upon  between  the  Board  of  Directors  of  the  district 
and  the    holders   of  such    outstanding    bonds;  provided,  that 
said  board  shall  not  exchange  any  such  bonds  for  less  amount 
in  par  value  of  the  bonds  received.     All  of  such  old  issue,  in 
place  of  which  new  bonds  are  issued,  shall  be  destroyed  when- 
ever lawfully  in  possession  of  said  Imard."  ' 

§368.  Board  to  Sell  Bomls.— "  Sec.  i6.  The  board  may 
.sell  said  bonds  from  time  to  time  in  such  quantities  as  may  be 
necessary  and  most  advantageous  to  raise  money  for  the  con- 
struction of  said  canals  and  works,  the  acquisition  of  said 
property  and  rights  and  otherwi.se  to  fully  carry  out  the  object 
and  purposes  of  this  Act." 

The  section  also  provides  that  notice  of  the  sale  of  the  bunds 
is  to  be  given  by  publication  in  a  daily  newspaper  published 

lAs  amen.led  by  Act  approv.-.l  March  20.  iSc^i,  Slal.  iS.,i.  pa^c-  i.»7. 
Sec.  I. 


562 


IRRIGATION    IX    CALIFORNIA. 


[§368 


in  each  of  the  cities  of  San  Francisco,  Sacramento  and  lyos 
Angeles,  and  in  any  other  newspaper  at  their  discretion. 
Sealed  proposals  will  be  received  by  the  board  at  their  office 
for  the  purchase  of  the  bonds,  and  the  sale  thereof  shall  be 
awarded  to  the  highest  responsible  bidder;  but  said  board 
shall  in  no  event  sell  any  of  the  said  bonds  for  less  than 
ninety  per  cent,  of  the  face  value  thereof."  ^ 


1  An  Act  supplemental  to  the 
Act  of  March  7,  1887,  was  ap- 
proved March  16,  1889,  to  provide 
for  the  examination,  approval  and 
confirmation  of  proceedings  for 
the  issue  and  sale  of  bonds  issued 
under  the  provisions  of  said  Act. 
See  Stat.  i88g,  p.  212;  5  Deering, 
299. 

Section  i  of  said  supplemental 
Act  provides  that  the  Board  of 
Directors  of  an  irrigation  district 
"may  commence  a  special  pro- 
ceeding in  and  by  which  the  pro- 
ceedings of  said  board  of  said  dis- 
trict providing  for  and  authoriz- 
ing the  issue  and  sale  of  the  bonds 
of  said  district,  whether  said 
bonds  or  any  of  them  have  or 
have  not  then  been  sold,  may  be 
judicially  examined,  approved  and 
confirmed." 

"  Sec.  2.  The  Board  of  Directors 
of  the  irrigation  district  shall  file 
in  the  Superior  Court  of  the 
county  in  which  the  lands  of  the 
district,  or  some  portion  thereof, 
are  situated,  a  petition  praying  in 
effect  that  the  proceedings  afore- 
said may  be  examined,  approved 
and  confirmed  by  the  Court.  The 
petition  shall  state  the  facts  show- 
ing the  proceedings  had  for  the 
issue  and  sale  of  said  bonds;  and 
shall  state  generally  that  the  irri- 
gation district  was  duly  organized, 
and  that   the   first   Board   of    Di- 


rectors was  duly  elected;  but  the 
petition  need  not  state  the  facts 
showing  such  organization  of  the 
district  or  the  election  of  said  first 
Board  of  Directors." 

The  Act  provides  that  the  Court 
shall  set  the  time  for  the  hearing 
of  said  petition;  and  that  notice 
shall  be  published  of  the  hearing 
in  the  same  manner  and  for  the 
same  length  of  time;  that  a  notice 
of  a  special  election  provided  for 
by  said  Act  to  determine  whether 
the  bonds  of  said  district  shall  be 
issued  is  required  to  be  given  and 
published.  It  also  provides  that 
interested  parties  may  demur  to 
or  answer  said  petition.  Upon  the 
hearing  of  such  special  proceed- 
ings the  Court  shall  have  power 
and  jurisdiction  to  determine  the 
legality  and  validity  of,  and  ap- 
prove and  confirm  each  and  all, 
the  proceedings  for  the  organiza- 
tion of  said  district  under  the  pro- 
visions of  said  Act,  from  and  in- 
cluding the  petition  for  the  or- 
ganization of  the  district,  and  all 
other  proceedings  which  maj^  af- 
fect the  legality  or  validity  of  said 
bonds,  and  the  order  for  the  sale, 
and  the  sale  thereof.  It  also  pro- 
vides that  an  appeal  from  the 
order  from  the  judgment  ma)-  be 
taken  by  the  party  aggrieved. 

See  Post  Sections  392,  393  as  to 
construction  of  statute. 


§369,370]  IRRIGATION     IN    ('ALIKoKNIA.  563 

§360.  Bonds  H()>Y  to  he  l*jii<l.—  '  Sec  17.  Said  Ik)iic1> 
and  the  interest  thereon  shall  be  paid  by  revenue  derived 
from  an  annual  assessment  upon  the  real  property  of  the  dis- 
trict; and  all  the  real  property  shall  be  and  remain  liable  to 
be  assessed  for  such  payments  as  hereinafter  provided.  And 
as  additional  security  for  the  payment  of  all  said  bonds  and 
interest  thereon  the  Board  of  Directors  shall  have  power  to 
pledge  by  mortgage,  trust  deed,  or  otherwise,  all  property  of 
the  district  situate  within  or  without  the  district,  whether 
real,  personal  or  mixed,  of  whatsoever  kind,  including  all  its 
rights  and  privileges  held  or  possessed  at  the  time  of  the  issue 
of  said  bonds,  or  which  may  hereafter  be  acquired  under  the 
provisions  of  this  Act."  ^ 

§  370.  Assessineiit  of  Rt^al  rroporty.— Sec.  18  of  said  Act 
provides  for  the  assessment  of  all  the  real  property  in  the 
district  at  its  cash  valuation.  The  duties  of  the  Assessor  are 
also  prescribed  for  making  the  assessment,  the  description  of 
the  property  and  other  data  that  must  be  entered  in  the  As- 
sessor's books.  And  the  last  of  the  section  provides  "any 
property  which  may  have  escaped  the  payments  of  any 
assessments  for  any  year  shall,  in  addition  to  the  assessment 
for  the  then  current  year,  be  assessed  for  such  year  with  the 
same  effect,  and  with  the  same  penalties  as  are  provided  tor 
such  current  year."  - 

Sec.  19.  This  section  provides  for  the  appointment  ot  as 
many  deputy  assessors  as  will  enable  the  Assessor  to  comi)lete 
his  work  within  the  time  prescribed. 

Sec.  20  provides  that  the  assessment  must  be  coini)lele(l 
on  or  before  the  first  Monday  in  August  of  each  year. 

Sec.  21  prescribes  the  powers   and   duties  of  the   Board  of 

Board  of  Directors  of   Irr.  Dis-  i  .\s  amended  by  Act  approved 

trict   vs.    Tregea,   88   Cal.    334;  26  March  11,   1893;  see  Stat.  iS<,v  p. 

Pac.  Rep.  237;  Crall    vs.    Board  of  175- 

Directors    Poso    Irr.    District,  87  -'As  amended  by  Act  appiove«l 

Cal.  140;  26  Pac.  Rep.  797;  also  see  March  31,   1891;  see  Stut.   iHyi.  p. 

In  Re  Bonds  of  Madera   Irrigation  24.^,  Sec.    I. 
District,  92  Cal.  296;  28  Pac.  Rep. 
272. 


564  IRRIGATION    IN    CALIFORNIA.  [^  370-373 

Directors  sitting  as  a  Board  of  Equalization;  and  that  the 
board  may  change  the  valuation  as  ma}'  seem  just. 

§  371.  Levying  of  Assessments  to  Pay  Interest  on  Bonds. 

— "  Sec.  22.  The  Board  of  Directors  shall  then  levy  an  assess- 
ment sufficient  to  raise  the  annual  interest  on  the  outstanding 
bonds,  and  at  the  expiration  of  ten  years  after  the  issuing  of 
bonds  of  any  issue  must  increase  said  assessment  to  an  amount 
sufficient  to  raise  a  sum  sufficient  to  pay  the  principle  of  the 
outstanding  bonds  as  they  mature."  When  collected  the 
assessment  shall  be  paid  into  the  district  treasury,  and  shall 
constitute  a  special  fund,  to  be  called  the   "  Bond  Fund  of 

Irrigation  District." 

Provisions  are  also  made  in  case  of  the  neglect  or  refusal  of 
the  Board  of  Directors  to  cause  such  assessment  and  levy  to 
be  made  that  the  assessment  of  the  property  made  by  the 
County  Assessor  shall  be  adopted,  and  shall  te  the  basis  of 
assessments  for  the  district.  And  in  case  of  the  neglect  or  re- 
fusal of  the  Treasurer  of  the  district  to  perform  the  duties  im- 
posed by  law  then  the  Tax  Collector  and  Treasurer  of  the 
county  must  respectively  perform  such  duties,  and  shall  be 
accountable  therefor  upon  their  official  bond,  as  in  other 
cases.  ^ 

§372.  Lien  of  Assessment. —  "Sec.  23.  The  assessment 
upon  real  property  is  a  lien  against  the  property  assessed  from 
and  after  the  first  Monday  in  March  for  any  year,  and  the  lien 
for  the  bonds  of  any  issue  shall  be  a  preferred  lien  to  that  for 
any  subsequent  issue,  and  such  lien  is  not  removed  until  the 
assessments  are  paid  or  the  property  sold  for  the  payment 
thereof."  2 

§  373.  Collection  of  Assessments  how  Made. — Delinquent 
Assessments. — Sec.  24  provides  that  on  or  before  the  first 
day  of  November  of  each  year  the  Secretary  must  deliver  the 
assessment  books  to  the  Collector  of  the  district,  who  shall 
publish  a  notice  that  said  assessments  are  due  and  payable 

1  As  amended   by  Act   approved  3  As  amended  by   Act  approved 

March  20,  1891;  see  vStat.  1891.  p.  March  20,  1891;  Stat.  1S91,  p.  149, 
149,  Sec.  2.  Sec.  3. 


§37;3.:>74;  IKKIliATlOX     IN    OALIFOHXIA.  .">«5 

and  will  become  delinquent  at  six  o'clock  l\  M.  on  tlic  last 
Monday  in  December  next  thereafter.  The  section  also  pro- 
vides for  the  time  and  place  of  collection  of  the  assessments; 
and  also,  "  On  the  last  Monday  in  December  at  six  o'clock 
P.  M.  of  each  year  all  unpaid  assessments  are  delintjuent,  and 
thereafter  the  Collector  must  collect  thereon  for  tht-  use  of  the 
district  an  addition  of  five  per  cent."  • 

Sec.  25  provides  for  the  publication  of  the  deliiuiueni  iisi, 
designating  the  time  and  place  of  the  sale  of  the  proi)erty  for 
the  payment  of  the  assessment,  with  accrued  costs.  It  also 
provides  that  the  time  of  sale  must  not  be  less  than  twenty- 
one  nor  more  than  twenty -eight  days  from  the  first  pub- 
lication.^ 

Sec.  26  provides  that  the  Collector  must  collect,  in  addi- 
tion to  the  assessments  due  on  the  assessment  lists  and  five 
per  cent,  added,  fifty  cents  on  each  lot  assessed.  Also,  that 
on  the  date  fixed  for  the  sale,  or  some  subseijuent  day  to 
which  the  Collector  maj'  postpone  it.  he  must  commence  the 
sale  of  property  advertised  and  continue  the  same  until  com- 
pleted, but  the  sale  must  be  completed  within  three  weeks 
from  the  first  day  fixed. ^ 

§374.  Sale  of  Property. — Collector's  Certilinile— Sec.  27 

provides  that  "  The  owner  or  person  in  possession  of  any 
real  estate  offered  for  sale  for  assessments  due  thereon  may 
designate  in  writing  to  the  collector,  prior  to  the  .sale,  what 
portion  of  property  he  wishes  sold,  if  less  than  the  whole;  " 
if  no  such  designation  is  made  then  the  Collector  must  sell 
the  smallest  portion  of  the  interest  and  ])ay  the  assessments 
and  costs  due.  But  in  case  there  is  no  purchaser  in  gi^od 
faith  for  the  property  when  it  is  offered  for  sale  the  wiiole 
amount  of  the  property  assessed  shall  be  struck  offto  the  irri- 
gation district.' 

1  As  amended  by   Act  approved  :<.\s.iineiide<l   by  Act  approved 

March  31,  1891;  Stal.  1S91,  p.  245.  Marcb  31,    1S91;  st-c  Stat.  iS<,i.   p. 

Sec.  2.  246,  Sec.  4. 

2!  As  amended   by   Act  .-ii)])roved  '  .\s  atnentlcd  \>y  .\cl   approved 

March  31,  1891;  see  Stat.   1891,  p.  leb.  16,  1889;  sec  SUil.  18S9,  p.  15. 

245,    vSec.    3.     See   recent   case  of  Sec.  3;  5  DccrinK.  204. 
Decker  vs.  Terry, 35  PacRej).  1017. 


566  IRRIGATION    IN    CALIFORNIA.  [§374-376 

Sec.  28  provides  what  the  Collector's  certificate  to  the 
purchaser  of  the  land  shall  contain.  And  "On  filing  the  cer- 
tificate with  such  County  Recorder  the  lien  of  the  assessments 
vests  in  the  purchaser  and  is  only  divested  by  the  payment  to 
him,  or  the  Collector  for  his  use,  of  the  purchase-money  and 
two  per  cent,  per  month  from  the  day  of  the  sale  until  re- 
demption." 

§  375.  Time  and  Manner  in  which  Property  may  he  Re- 
deemed.— Sec.  29  provides  "A  redemption  of  the  property 
sold  may  be  made  by  the  owner  or  any  party  in  interests  with- 
in twelve  months  from  the  date  of  the  purchase.  *  *  * 
If  the  property  is  not  redeemed  within  twelve  months  from 
the  sale  the  Collector  or  his  successor  in  office  must  make  to 
the  purchaser  or  his  assignee  a  deed  to  the  property." 

This  section  was  supplemented  by  an  Act  approved  March 
10,  1891,^  which  provided  that  in  all  cases  where  property  has 
been  sold  for  delinquent  assessments,  under  the  provisions  of 
the  Act  of  March  7,  1887,  and  an  irrigation  district  has 
become  the  purchaser,  and  has  not  disposed  of  the  same,  the 
person  whose  estate  has  been  sold,  or  his  successors  in  in- 
terest, may  redeem  such  property  by  paying  to  the  Treasurer 
of  the  district  wherein  the  property  is  situated  the  amount  of 
the  assessments  due  thereon  at  the  time  of  the  sale,  with  in- 
terest thereon  at  the  rate  of  two  per  cent,  per  month;  and  also 
all  assessments  that  were  a  lien  upon  the  property  at  the  time 
the  assessments  became  delinquent;  and  also  for  each  year 
since  the  sale  for  which  assessments  had  not  been  paid  and 
also  all  costs  and  expenses  and  fifty  per  cent,  penaltj'-,  which 
may  have  accrued  by  reason  of  such  delinquency  and  sale, 
and  the  cost  and  expenses  of  redemption  as  herein  specified. 
The  Act  also  provides  for  the  contents  of  the  certificate  of 
redemption  and  the  Treasurer's  receipt. 

§376.  Deeds.— Validity  of  Sale.— Time  and  Manner  of 
Settlement. — Sec.  30  provides  that  the  matter  recited  in  the 
certificate  of  sale  must  be  recited  in  the  deed,  and  that  the 
deed  conveys  to  the  grantee  the  absolute  title  to  the  lands 
described  therein  free  of  all  incumbrances. 

1  See  Stat.  1B91,  p.  53. 


§  376-378J  IRRiaATIOX    IN  CALIKMHNIA.  507 

Sec.  31  provides  that  the  certificate  of  the  Collector  is 
prima  Jacie  evidence  of  the  assessment,  the  property  assessed. 
the  delinquency,  the  amounts  of  assessments  due  and  unpaid', 
and  that  all  forms  of  law  in  relation  to  the  assessments  have 
been  complied  with. 

Sec.  32.  That  no  misnomer  of  the  owner  or  other  mistake 
relating  to  the  ownership  of  the  property  affects  the  sale  or 
renders  it  void  or  voidable. 

Sec.  T,2>  provides  the  time  and  manner  of  settlement  the 
Collector  must  make  with  the  Secretary  of  th.    Hoard. 

§377.  Payment  of  ('oiipoiis.— Payment  ami  Kodeiiiptioii 
of  Bonds.— Sec.  34.  Provides  that  upon  preseiitatii.n  of  the 
coupons  due  to  the  treasurer  he  shall  pay  the  same  from  the 
bond  fund.  And  it  also  provides  that  whenever,  after  ten 
years  from  the  issuance  of  the  bonds,  the  fund  shall  amount 
to  $10,000,  the  treasurer  may  pay  such  an  amount  of  said 
bonds  not  due  as  the  money  in  said  fund  will  redeem  at  the 
lowest  value  at  which  they  may  be  offered  for  liquidation.  It 
also  provides  for  the  advertising  for  sealed  proposals  for  the 
redemption  of  the  bonds,  and  the  lowest  bid  for  said  bonds 
must  I. e  accepted, />;w7V/^^.  that  no  bond  shall  be  redeemed 
at  a  rate  above  par. 

§  37s.  Contracts  for  Constrnction  of  Ditches  and  Canals.— 

"  Sec.  35.  After  adopting  a  plan  of  said  canal  or  canals,  stor- 
age reservoirs  and  works,  the  Board  of  Directors  shall  give 
notice,  by  publication  thereof,  not  less  than  twenty  days  in 
one  newspaper  published  in  each  of  the  counties  composing 
the  district  (provided  a  newspaper  is  published  therein),  and 
in  such  other  newspapers  as  they  may  deem  advisable,  calling 
for  bids  for  the  construction  of  such  work  of  any  portion 
thereof;  if  less  than  the  whole  work  is  advertised  then  the 
portion  so  advertised  must  be  particularly  described  in  such 
notice.  Said  notice  shall  set  forth  that  plans  and  specifica- 
tions can  be  seen  at  the  office  of  the  board,  and  that  the 
board  will  receive  sealed  proposals  therefor,  and  that  the  con- 
tract will  be  let  to  the  lowest  responsible  bidder,  stating  the 
time  and  place  for  opening  said  proposals,  which,  at  the  time 


568  IRRIGATION    m    CALIFORNIA.  [§378,379 

and  place  appointed,  shall  be  opened  in  public,  and  as  soon 
as  convenient  thereafter  the  board  shall  let  said  work,  either 
in  portions  or  as  a  whole,  to  the  lowest  responsible  bidder;  or 
they  may  reject  any  or  all  bids  and  readvertise  for  proposals, 
or  may  proceed  to  construct  the  work  under  their  own  super- 
intendence. Contracts  for  the  purchase  of  material  shall  be 
awarded  to  the  lowest  responsible  bidder.  Any  person  or 
persons  to  whom  the  contract  may  be  awarded  shall  enter 
into  a  bond  with  good  and  sufficient  sureties,  to  be  approved 
by  the  board,  payable  to  said  district  for  its  use,  for  twenty- 
five  percent,  of  the  amount  of  the  contract  price,  conditioned 
for  the  faithful  performance  of  said  contract.  The  work  shall 
be  done  under  the  direction  and  to  the  satisfaction  of  the 
engineer  and  be  approved  by  the  board. "^ 

§  371).  Payiueiits  of  ('laiiiis. — Payments  from  Construc- 
tion Fund. — Sec.  36.  Provides,  "  No  claim  shall  be  paid  by 
the  treasurer  until  allowed  by  the  board,  and  only  upon  a 
warrant  signed  by  the  president  and  countersigned  bj^  the 
secretary."  But  the  section  provides  that  the  board  may 
draw  from  time  to  time  from  the  construction  fund  and  de- 
posit in  the  county  treasurj'  of  the  count}-  where  the  ofl&ce 
of  the  board  is  situated  an 3^  sum  in  excess  of  $25,000.  The 
county  treasurer  to  pay  out  the  same  or  any  portion  thereof 
to  the  treasurer  of  said  district  and  only  upon  order  of  the 
board . 

"  Sec.  37.  The  cost  and  expense  of  purchasing  and  acquir- 
ing property  and  constructing  the  works  and  improvements 
herein  provided  for  shall  be  wholl}^  paid  out  of  the  construc- 
tion fund.  For  the  purpose  of  defraying  the  expenses  of  the 
organization  of  the  district  and  of  the  care,  operation,  manage- 
ment, repair  and  improvement  of  such  portions  of  said  canal 
and  works  as  are  completed  and  in  use,  including  salaries  of 
of&cers  and  emploj'^es,  the  board  may  either  fix  rates  of  tolls 
and  charges  and  collect  the  same  from  all  persons  using  said 
canal  for  irrigation  and  other  purposes,  or  the^^   may   provide 

1   As  amended  by  an  Act  approved  March  20,  1891;  see  Stat.   1891,  p. 
146,  Sec.  7. 


§379-381]  IRRIGATION    IN    CALIKOUNIA.  :»69 

for  the  paymeut  of  said  expenditures  by  a  levy  of  xssessraents 
therefor  or  by  both  said  tolls  and  assessments;  if  by  the  latter 
method  such  levy  shall  be  made  on  the  completion  and  equali- 
zation of  the  assessment  roll,  and  the  board  shall  have  the 
same  powers  and  functions  for  the  purposes  of  said  levy  as 
are  now  possessed  by  the  boards  of  supervisors  in  this  State. 
The  procedure  for  the  collection  of  assessments  by  such  levy, 
shall  in  all  respects  conform  to  the  provisions  of  this  Act  re- 
lating; to  the  payment  of  principal  and  interest  of  bonds  herein 
provided  for." 

§  SSO.  Powers  of  the  Hoard.— "  Sec.  >s.  The  Board  of 
Directors  shall  have  the  power  to  construct  the  said  works 
across  any  stream  of  water,  water  course,  street,  avenue, 
highwa}',  railway,  canal,  ditch  or  flume  which  the  route  of 
arid  canal  or  canals  may  intersect  or  cross,  in  such  maimer  as 
to  afford  security  for  life  and  property:  but  said  board  shall 
restore  the  same,  when  so  crossed  or  intersected,  to  its  former 
state  as  near  as  may  be  or  in  a  sufficient  manner  not  to  have 
impaired  unnecessarily  its  usefulness,  and  every  company 
whose  railroad  shall  have  been  intersected  or  crossed  by  said 
works  shall  unite  with  said  board  in  forming  said  intersec- 
tions and  crossings  and  grant  the  privileges  aforesaid;  and  if 
such  railroad  company  and  said  board  or  the  owners  and  con- 
trollers of  the  said  property,  thing  or  franchise  so  to  be 
crossed,  cannot  agree  upon  the  amount  to  be  paid  therefor,  or 
the  points  or  the  manner  of  said  crossings  or  intersections,  the 
same  shall  be  ascertained  and  determined  in  all  respects  as  is 
herein  provided  in  respect  to  the  taking  of  land.  The  right 
of  way  is  hereby  given,  dedicated  and  set  ai)art,  to  locate, 
construct  and  maintain  said  works  over  and  llirough  any  ol 
the  lands  which  are  now  or  may  be  the  jjrojK-rty  o(  tliis  State: 
and  also  there  is  given,  dedicated  and  set  apart  for  the  uses 
and  purposes  aforesaid,  all  waters  and  water-ri),dits  belon^'ing 
to  this  State  within  the  district." 

^:iSl.  Siihir.v  of  Dim-lors.  Olllnis  Not  lo  hv  Iiilere^tod 
in  Coiiiracts.-  Special  Elections.  Sec  yj.  Trovido  im  the 
salary  and  i)er  diem  of  tlu-  dirtitors  and  other  oflicer^. 


570  IRRIGATIOX    IN    OALIFORXIA.  [§  381-383 

"  Sec.  40.  No  director  or  any  other  officer  named  in  this 
Act  shall  in  any  manner  be  interested,  directly  or  indirectly, 
in  any  contract  awarded  or  to  be  awarded  by  the  board  or  in 
the  profits  to  be  derived  therefrom;  and  for  any  violation  of 
this  provision  such  officer  shall  be  deemed  guilty  of  a  misde- 
meanor, and  such  conviction  shall  work  a  forfeiture  of  his 
office  and  he  shall  be  punished  by  a  fine  not  exceeding  five 
hundred  dollars  or  by  imprisonment  in  the  county  jail  not  ex- 
ceeding six  months  or  by  both  such  fine  and   imprisonment." 

Sec.  41.  Provides  "The  Board  of  Directors  may,  at  any 
time,  when  in  their  judgment  it  may  be  advisable,  call  a 
special  election  and  submit  to  the  qualified  electors  of  the  dis- 
trict the  question  whether  or  not  a  special  assessment  shall  be 
levied  for  the  purpose  of  raising  money  to  be  applied  to  any 
of  the  purposes  provided  in  this  Act."  Specific  rules  are 
then  laid  down  for  the  conduct  of  the  election. 

§  382.  Limit  of  Power  of  Board  to  Incur  Indebtedness.— 

"  Sec.  42.  The  Board  of  Directors  or  other  officers  of  the  dis- 
trict shall  have  no  power  to  incur  any  debt  or  liability  what- 
ever, either  by  issuing  bonds  or  otherwise,  in  excess  of  the 
express  provisions  of  this  Act;  and  any  debt  or  liability  in- 
curred in  excess  of  such  express  provisions  shall  be  and  re- 
main absolutely  void,  except  that  for  the  purpose  of  organiza- 
tion or  for  any  of  the  purposes  of  this  Act,  the  Board  of  Di- 
rectors may,  before  the  collection  of  the  first  assessment, 
incur  an  indebtedness  not  exceeding  in  the  aggregate  the 
sum  of  two  thousand  dollars,  and  may  cause  warrants  of  the 
district  to  issue  thereof,  bearing  interest  at  seven  per  cent, 
per  annum. "^ 

§  383.  Apportionment  of  Water.— Duty  of  Directors.— 

"  Sec.  43.  In  case  the  volume  of  water  in  any  stream  or  river 
shall  not  be  sufficient  to  supply  the  continual  wants  of  the 
entire  country  through  which  it  passes  and  susceptible  of  ir- 
rigation therefrom,  then  it  shall  be  the  duty  of  the  water 
commissioners  constituted  as  hereinafter  provided  to  apportion 

lAs  amended    bj^  Act  approved    March  20,   1S91;  Stat.    1891,  p.   147, 
Sec.  8. 


^383-386]  IKKItiATIoN     IN    CALIFORNIA.  571 

in  a  just  and  equitable  proportion  a  certain  amount  of  said 
water  upon  certain  or  alternate  weekly  days  to  different  local- 
ities, as  they  may  in  their  judgment  think  best  for  the  interest 
of  all  parties  concerned  and  with  due  regard  to  the  legal  and 
equitable  rights  of  all.  Said  water  commissioners  shall 
consist  of  the  chairman  of  the  Board  of  Directors  of  each  of 
the  districts  affected." 

"  Sec.  44.  It  shall  be  the  duty  of  the  Board  of  Directors  to 
keep  the  water  flowing  through  the  ditches  under  their  con- 
trol to  the  full  capacity  of  such  ditches  in  times  of  high 
water." 

^SS4.  Act  Not  to  Effect  Xavijjration  or  Miniiii;  Imlustr.v.— 

"  Sec.  45.  Navigation  shall  never  in  anywise  be  impaired  by 
the  operation  of  this  Act,  nor  shall  any  vested  interest  in  or 
to  any  mining  water-rights  or  ditches  or  in  or  to  any  water- 
rights,  or  reservoirs  or  dams  now  used  by  the  owners  or  pos- 
sessors thereof,  in  connection  with  any  mining  industry  «>r  by 
persons  purchasing  or  renting  the  use  thereof,  or  in  or  to  any 
other  property  now  used  directly  or  indirectly  in  carrying  on 
or  promoting  the  mining  industry,  ever  be  affected  by  or 
taken  under  its  provisions,  save  and  except  that  rights  ot  way 
may  be  acquired  over  the  same." 

§:^S5.  Act  Not  to  Effect  Existiiiu:  Laws  or  Kiu'lits  Ac- 
quired.—"  Sec.  46.  Noneof  the  provisions  of  this  Act  shall  be 
construed  as  repealing  or  in  any  wise  modifying  the  provisions 
of  any  other  Act  relating  to  the  subject  of  irrigation  or  water 
commissioners.  Nothing  herein  contained  shall  be  deemed 
to  authorize  any  person  or  persons  to  divert  the  waters  ot  any 
river,  creek,  stream,  canal  or  ditch  from  its  channel  to  the 
detriment  of  any  person  or  persons  having  any  interest  ni 
such  river,  creek,  stream,  canal  or  ditch  or  the  waters  therein, 
unless  previous  compensation  be  ascertained  and  paid  there- 
for, under  the  laws  of  this  State  authorizing  the  takitig  of 
private  property  for  public  uses." 

§  38(>.  Kcdiiclioii  of  IJomlcd  Indcldediiess.  Election 
Therefor.— An  Act  sui)plenRnlal  t<»  ilu-  Act  «.f  March  7.  1H.S7, 
providing  for  rt-ducing  tlu-  b  .i.d.-<l  in<lebte<lness  of  any  irriga- 


572  IRRIGATION    IX    CALIFORNIA.         [^386,387 

tion  district  was  approved  on  March  23,  1893.^  The  Act 
provides  that  whenever  the  Board  of  Directors  of  an  irrigation 
district  organized  under  and  pursuant  to  the  provisions  of  the 
original  Act,  "  Shall  determine  that  the  authorized  bonded 
indebtedness  of  such  irrigation  district  is  greater  than  such 
district  is  liable  to  need  to  complete  its  system  as  planned, 
and  there  be  no  outstanding  bond,  the  Board  of  Directors  may 
call  a  special  election  upon  a  proposition  to  reduce  such 
bonded  indebtedness  to  such  sum  as  the  board  may  determine 
to  be  sufficient  for  such  purpose."  The  Act  also  provides, 
that  an  election  shall  be  held  for  the  purpose  in  the  same 
manner  as  other  elections  held  under  the  provisions  of  the  Act- 
Specific  rules  are  laid  down  for  the  conduct  of  the  election, 
canvass  of  the  votes  and  supplementary  proceedings,  and 
tor  obtaining  the  assent  of  the  bondholders  in  case  there  be 
an}'  outstanding  bonds  of  the  districts. 

§  387.  Aft  to  Provide  for  the  Leasiiii?  of  Water  for  Me- 
chauiciil  Purposes  by  Irrigatiiii?  Districts. — Also  an  Act  to 
provide  for  the  leasing  and  disposition  of  water  for  generation 
of  power  for  mechanical  purposes  b)'  irrigation  districts  was 
approved  on  March  23,  1893.-  The  Act  provides  that  when- 
ever an  irrigation  district  may  have  opportunity  to  utilize  the 
water  owned  or  controlled  by  it  for  mechanical  purposes,  not 
inconsistent  with  the  provisions  of  the  Act,  the  Board  of  Di- 
rectors may  lease  the  same.  It  also  provides  that  notice  of 
intention  to  lease  the  waters  ma}-  be  published,  calling  for 
bids,  and  also  stating  that  the  lease  will  be  let  to  the  highest 
responsible  bidder,  stating  the  time  and  place  of  opening  said 
proposals.  It  also  provides  that  the  board  shall  let  said  lease 
in  portions  or  as  a  whole  to  the  highest  responsible  bidder. 
The  rental  accruing  upon  said  lease  ma}'  vary  from  year  to 
year,  as  shall  be  specified  in  the  lease  and  shall  be  payable 
semi-annually.  All  moneys  collected  for  rental  shall  be  paid 
into  the  treasury  and  be  used  in  the  manner  provided  in 
Section  34  of  the  original  iVct. 

Sec.  5  of  the  Act  provides  that:  "The  board  shall  have 
power,  as  in  this  Act   provided,   to   execute   a   lease   for  any 

1  Stat.  1893,  p.  275.       -Stat.  1S93,  p.  295. 


§387,388]         IHKUiATIoN    l.\    .AI.IF.MIXIA.  .-,7;5 

period  not  exceeding  fifty  years,  h  .11  .uin  una-  ur-  iciita.N 
shall  not  be  paid  on  the  days  hereinbefore  mentioned  the 
amount  of  such  rental  then  due  shall  be  doubled  and  if  not 
paid  within  ninety  days  thereafter  the  said  lease  shall  be  for- 
feited to  said  district,  together  witli  any  and  all  works  con- 
structed, owned,  used  or  controlled  by  said  lessee." 

Sec.  6  provides  that:  "Upon  the  letting  of  any  lease  a^,  in 
this  Act  provided,  the  board  may  require  the  lessee  to  execute 
a  bond  for  the  payment  of  the  rental  and  proper  performance 
of  the  said  lease  or  give  such  other  evidt n.  of  g(K)d  faith  as 
in  their  judgment  may  be  necessary." 

§388.  Disori^aiiiziitioii  ami  Aljaiulouiuciit  1>\  lrrii;alioii 
Districts. — Another  Act  supplemental   to  the   Act  of  March 

7,  1887,  providing  for  the  abandonment  of  operations  by  irri- 
gation districts  and  for  their  disorganization  upon  the  dis- 
charge of  all  outstanding  obligations,  and  dividing  irrigation 
districts  into  classes  was  approved  March  25,  iSy^v'  The  Act 
provides  that  for  its  purposes  irrigation  districts  are  divided 
into  three  classes  based  upon  the  amount  of  acreage  in  each 
district  respectively.  Also  that  whenever  a  petition  is  pres- 
ented to  the  Board  of  Directors  of  an  irrigation  district, 
signed  by  a  majorit}-  of  the  assessment  ])ayers  within  said 
district,  asking  for  the  abandonment  (jf  further  operations  bv 
the  district,  the  Board  of  Directors  of  said  district  shall  call 
a  special  election  at  which  the  question  of  such  abandonment 
of  further  operations  by  the  district  shall  be  submitted.  The 
Act  prescribes  specific  rules  for  the  conduct  of  the  election, 
form  of  ballots  to  be  used  to  be  voted  at  said  election:  also  that 
no  further  bonds  shall  be  issued;  that  the  (juestion  (»f  abatulou- 
ment  shall  not  be  submitted  oftener  than  once  in  two  years: 
that  the  directors  shall  sell  and  dispose  of  all  of  the  property 
as  soon  after  such  vote  to  abandon  such  operation  as  it  can  be 
done  without  sacrifice;  that  the  property  of  the  district 
shall  be  advertised  for  sale  and  shall  be  sold;  that  the  j>roi)erl\ 
may  be  sold  for  part  cash  and  j)art  deferred  i)ayment  bearing 
interest  at  the  legal  rate;  that  the  sale  shall  not  eflect  or  im- 
pair the  lien  of  any  outstanding   bonds  of  said  district.     The 

1  Sec  Slat.  |H(^,",,  ;>.  .S20. 


574  IRRIGATION    IN    CALIFORNIA.  [^388,389 

money  received  for  the  propert5^  after  paying  the  expenses  of 
the  district,  salaries  of  the  officers  and  all  other  bona  fide 
debts  of  the  district,  shall  be  applied  to  the  redemption  of 
the  outstanding  bonded  indebtedness  of  the  district  or  in- 
vested as  provided  in  Sec.  34  of  the  Wright  law.  That  upon 
final  abandonment,  whenever  all  the  property  of  such  irriga- 
tion district  shall  have  been  disposed  of,  and  all  obligations 
thereof  shall  have  been  paid  and  thirty  days  shall  have 
expired  after  such  vote,  the  directors  of  the  district  shall  file 
in  the  Superior  Court  of  the  county  a  petition  setting  forth 
the  facts  and  praying  that  a  decree  be  made  and  entered  dis- 
organizing said  district.  The  Act  also  provides  that  all 
books,  papers  and  records  are  to  be  delivered  to  the  Clerk  of 
the  Court;  and  it  is  the  duty  of  the  Court,  on  filing  the 
petition,  to  order  a  copy  to  be  published  stating  the  time  of 
the  hearing.  At  or  before  the  time  of  the  hearing  of  the 
petition  any  person  may  show  cause,  if  any  he  have,  why  the 
said  petition  should  not  be  granted.  If  upon  the  hearing  the 
facts  set  up  in  the  petition  are  proven  it  shall  be  the  duty  of 
the  Court  to  make  findings  in  accordance  with  such  allegations 
and  proof,  and  to  enter  a  judgment  and  decree  disorganizing 
the  district. 

V.  Construction  of  California  Irris^ation  District  Law. 

%  3S9.  Natnre  of  Irrigation  Districts  as  Organized  Under 
the  Act. — It  is  held  by  the  Supreme  Court  of  California  that 
the  Legislature  may  by  general  laws  authorize  the  inhabitants 
of  any  district,  under  such  restrictions  and  with  such  prelimi- 
nary steps  as  it  may  deem  proper,  to  organize  themselves  into 
a  public  corporation  for  governmental  purposes,  and  such  cor- 
porations need  not  be  required  to  be  formed  in  the  same 
manner  or  provided  with  the  same  powers  as  municipal  cor- 
porations of  a  different  class.  Also  it  is  held  that  an  irriga- 
tion district  organized  under  the  Wright  Act  becomes  a  public 
corporation,  and  its  officers  become  public  officers  of  the 
State  .^    And  Mr.  Justice  Harrison  in  the  opinion  said,  in  the 

lln  re  Bonds  of  Madera  Irrigation  District,  92  Cal.  296,  318;  28  Pac. 
Rep.  675- 


§389]  IRKIGATION     IN    <ALI  FuKN  1  A.  T)?.') 

case  of  111  Re  Bonds  of  Madera  Irrigation  District,  supra: 
"  Inasmuch  as  there  is  no  restriction  upon  the  power  of  the 
Legislature  to  authorize  the  formation  of  such  corporations 
for  an}-  public  purpose  whatever,  and  as  when  organized  they 
are  but  mere  agencies  of  the  State  in  local  goveniment,  with- 
out any  powers  except  such  as  the  Legislature  may  confer 
upon  them,  and  are  at  all  times  subject  to  a  revocation  of  such 
power,  it  was  evidently  the  purpose  of  the  framers  of  the 
Constitution  to  leave  in  the  hands  of  the  Legislature  full 
discretion  in  reference  to  their  organization 

"  In  the  present  case  the  Legislature  has  chosen  to  author- 
ize the  creation  of  a  public  corporation  in  the  manner  and 
with  the  forms  specified  in  the  Act  under  discussion.  *  *  • 
That  an  irrigation  district  organized  under  the  Act  in  question 
becomes  a  public  corporation  is  evident  from  an  examination 
of  the  mode  of  its  organization,  the  purpose  for  which  it  is 
organized  and  the  powers  conferred  upon  it.  It  can  l)e  or- 
ganized only  at  the  instance  of  the  Hoard  of  Supervisors  of 
the  county — the  legislative  body  of  one  of  tlie  constitutional 
subdivisions  of  the  State;  its  organization  can  be  etTeeted  only 
upon  the  vote  of  the  qualified  electors  within  its  boundaries; 
its  ofi&cers  are  chosen  under  the  sanction  and  with  the  formali- 
ties required  at  all  public  elections  in  the  State — the  officers 
of  such  election  being  required  to  act  under  the  sanction  of 
an  oath,  and  being  authorized  to  administer  oaths  when  re- 
quired for  the  purpose  of  conducting  the  election;  and  theoffi- 
cers,  when  elected,  l)eing  required  to  execute  official  bonds  to 
the  State  of  California,  approved  by  a  judge  of  the  Superior 
Court.  The  district  officers  thus  become  public  officers  of 
the  State.  When  organized  the  district  can  aetjuirc,  either  by 
purchase  or  condemnation,  all  property  necessary  for  the  con- 
struction of  its  works,  and  may  construct  thereon  canals  and 
other  irrigation  improvements,  and  all  property  so  actjuired  is 
to  be  held  by  the  district  in  trust  and  is  dedicated  for  the  u.se 
and  purposes  set  forth  in  the  Act,  and  is  declared  to  be  a  public 
use,  subject  to  the  regulation  and  control  of  the  Slate.  For 
the  purpose  of  meeting  the  cost  of  acquiring  thi»  properly 
the  district  is  authorized,  upon  the  vote  of  the  majoiily  of  its 
electors,  to  issue  its  bonds,  and  these  bonds  and  the  interest 


576  IRRIGATION    IN    CALIFORNIA.  [§  389 

thereon  are  to  be  paid  by  revenues  derived  under  the  power 
of  taxation,  and  for  which  all  the  real  property  in  the  district 
is  to  be  assessed.  Under  this  power  of  taxation — one  of  the 
highest  attributes  of  sovereignty — the  title  of  the  delinquent 
owner  to  the  real  estate  assessed  may  be  divested  by  sale,  and 
power  is  conferred  upon  the  Board  of  Directors  to  establish 
equitable  bj'-laws,  rules  and  regulations  for  the  distribution 
and  use  of  water  among  the  owners  of  said  lands,  and  gener- 
ally to  perform  all  such  acts  as  shall  be  necessary  to  fulh' 
carry  out  the  purposes  of  the  Act.  Here  are  found  the  essen- 
tial elements  of  a  public  corporation,  none  of  which  pertain 
to  a  private  corporation.  The  property  held  by  the  corpora- 
tion is  in  trust  for  the  public  and  subject  to  the  control  of  the 
State.  Its  officers  are  public  officers,  chosen  by  the  electors 
of  the  district,  and  invested  with  public  duties.  Its  object 
is  for  the  good  of  the  public  and  to  promote  the  prosperity 
and  welfare  of  the  public.  '  When  a  corporation  is  composed 
exclusively  of  officers  of  the  government,  having  no  personal 
interest  in  it  or  with  its  concerns,  and  only  acting  as  organs 
of  the  State  in  effecting  a  great  public  improvement,  it  is  a 
public  corporation.'  (Angell  and  Ames  on  Corporations, 
Sec.  32.)  '  A  municipal  corporation  proper  is  created  mainly 
for  the  interest,  advantage  and  convenience  of  the  locality 
and  of  its  people.  The  primarj^  idea  is  an  agency  to  regulate 
and  administer  the  interior  concerns  of  the  locality  in  matters 
peculiar  to  the  place  incorporated  and  not  common  to  the 
State  or  people  at  large.'  (15  Am.  &  Eng.  Ency.  of  Ivaw, 
954.)  '  Public  corporations  are  such  as  are  created  for  the 
discharge  of  public  duties  in  the  administration  of  civil  gov- 
ernment.'    (Eawson's  Rights  and  Remedies,  Sec.  332.)  " 

The  decision  thus  held  that  an  irrigation  district  organized 
under  the  Act  was  "a  public  corporation,"  as  distinguished 
from  private  corporations,  in  the  broad  sense  of  the  term,  and 
that  the  district  was  not  confined  to  a  strict  and  more  narrow 
limits  of  "municipal  corporations."  ^ 

1 "  A   municipal   corporation,  in  inhabitants  of  a  city  or  town  for 

its  strict  and  proper  sense,  is  the  the  purposes  of  local  government 

body  politic  and  corporate  consti-  thereof.     Municipal   corporations 

tuted  by  the  incorporation  of  the  as  they   exist   in    this  country  are 


.^  390] 


lUKHiATlo.N     IN    CALIFORNIA. 


§3yi>.  Coustilutioiiiilit.v  ol"  llio  -  Wriixlil  l.iw  "  The 
"  Wright  Law  "  has  been  repeatedly  declared  by  the  Supreme 
Court  of  California  to  be  constitutional,  althoui^h  it  has  been 
attacked  from  nearly  every  possible  point. 

One  of  the  first  cases  wherein  the  constitutionality  ot  the 
Act  was  involved  was  that  of  the  Turlock  Irrigation  District 
vs.  Williams,  decided  on  May  31,  18SS,'  where  the  Court 
held  that:  The  Act  relative  to  condemnation  of  private  prop- 
erty, land,  water,  etc.,  for  the  uses  prescribed  therein  was 
constitutional.  And  Mr.  Justice  Foot,  in  rendering  the 
opinion  of  the  Court,  said:  "  The  provisions  of  the  Act  rela- 
tive to  the  condemnation  of  private  property,  lands,  water, 
etc.,  for  the  uses  prescribed  therein  are  in  harmony  with  the 
constitution  and  State  laws,  and  in  strict  consonance  with  the 
views  of  the  Supreme  Court  in  the  case  of  Lux  vs.  Haggin."- 

In  the  case  of  Crall  vs.  The  Board  of  Directors  of  Poso 
Irrigation  District,-^  the  Supreme  Court  also  held  that  the 
Wright  Law  providing  for  the  organization  of  irrigation  dis- 
tricts was  constitutional.  And  Mr.  Justice  Belcher,  iii  ren- 
dering the  opinion  of  the  Court  upon  the  subject,  said: 
"There  can  be  no  longer  any  question  that  the  Wright  Act 


bodies  politic  and  corporate  of 
the  general  character  above 
described,  established  by  law 
partly  as  an  agency  of  the  State  to 
assist  in  the  civil  government  of 
the  country,  but  chiefly  to  regu- 
late and  admiiiisler  the  local  or 
internal  affairs  of  the  city,  town 
or  district  which  is  incorporated." 
Dillon's  Municipal  Corporations, 
Vol.  I,  §  19  {9^>)- 

See  also  Central  Irv.  Co.  vs.  De 
Lappa,  79  Cal.  351;  21  I'ac.  Rep. 
825,  where  it  was  held  that  irriga- 
tion districts  are  public  ccrpora- 
tions  to  the  same  extent  as  re- 
clamation districts. 

Also  in  the  case  of  Turlock  Irr. 
Co.  vs.  Williams,  76  Cal.  360;  iS 
Pac.  Rep.  379,  it  was  held  that  the 


irrigation  districts  provi<led  for  in 
the  Act  are  quasi  public  corpora-' 
tions  in  the  sense  that  the  pur- 
poses for  which  they  are  to  be  or- 
ganized is  for  the  public   benefit. 

As  to  reclamation  <listricts  see 
Dean  vs.  Davis,  51  Cal.  410,  41 1; 
People  vs.  Rec.  District,  53  Cal. 
318;  People  vs.  Willinms,  56  Cal. 
647;  Hoke  vs.  Perdue,  62  Cnl.  546; 
Peoj)le  vs.  Larue,  67  Cnl.  52S. 

lUit  sec  Board  of  Directors  .Mid 
die  Kittitas  Irr.  District  vs.  Pi-ter 
son,  4  Wash.  147;  99  I'ac  Kej). 
995:  post  Section  423. 

1  76  Cal.  360;   i8  Pnc.  Rep.  370. 

-69  Cal.  302-305;  see  Ante  Ser 
tion  357- 

HS7  Cal.   Ljn;   2(>  Par.  Kcp.  79') 


578  IRRIGATION    IN    CALIFORNIA.         [§390,391 

is  constitutional,  and  that  irrigation  districts  organized  under 
its  provisions,  like  reclamation  districts,  are  public  corpor- 
ations." ^ 

In  the  case  of  Board  of  Directors  of  Modesto  Irrigation 
District  vs.  Tregea,^  the  Supreme  Court  held  that:  The  iden- 
tity of  the  irrigation  district  is  not  destroyed  by  the  exclusion 
of  part  of  the  land  therefrom;  and  if  at  the  time  of  the  ex- 
clusion the  district  had  no  indebtedness,  and  no  person  after 
the  notite  objected  to  the  exclusion,  there  was  no  basis  for 
any  claim  of  injustice  or  violation  of  any  constitutional  right. 
And  Mr.  Chief  Justice  Beatty,  in  rendering  the  opinion  of  the 
Court  upon  the  subject  of  the  constitutionality  of  the  law, 
said:  "  We  construe  the  law  to  mean  that  the  board  may  in- 
clude in  the  boundaries  of  the  district  all  lands  which  in  their 
natural  state  would  be  benefited  by  irrigation  and  that  are 
susceptible  of  irrigation  on  one  system,  regardless  of  the  fact 
that  buildings  or  other  structures  may  have  been  erected  here 
and  there  upon  small  tracts,  which  are  hereby  rendered  unfit 
for  cultivation,  at  the  same  time  that  their  value  for  other 
purposes  may  have  been  greatly  enhanced.  So  construed  we 
can  see  no  objections  to  the  law  upon  constitutional  grounds 
or  grounds  of  expediency." 

§  391.  Same.— Authorities.— In  the  exceedingly  well-con- 
sidered case  of  In  the  matter  of  the  bonds  of  the  Madera 
Irrigation  District  =^  the  constitutionality  of  the  Act  was 
attacked  upon  a  number  of  distinct  grounds: 

I  St.  That  the  law  was  repugnant  to  the  Fourteenth  Amend- 
ment to  the  Constitution  of  the  United  States  and  of  Sections 
13  and  14  of  Article  I.  of  the  Constitution  of  California,  in 
this,  that  it  provides  for  the  taxation  of  lands  of  private  indi- 
viduals in  limited  districts  for  the  benefit  of  lands  of  the 
State  and  the  United  States. 

2nd.  That  the  law  was  unconstitutional  because  the  method 
of  assessments  provided  for  is  upon  the  ad  valor  urn  system, 

1  Citing  Turlock  Irr.  District  vs.  2  88  Cal.  334;  26  Pac.  Rep.  237. 

Williams,  76  Cal  360;  Central  Irr.  ^92  Cal.  296;  28  Pac.  Rep.  675. 

District  vs.  De  Lappa,  79  CaL  351. 


§391]  IRRIGATION    IN    CALIt\)RXIA.  aTU 

and  does  not  take  into  consideration  the  benefits  to  be  con- 
ferred upon  taxable  lands. 

3rd.  The  Act  is  uaconstitutioual  because  under  pretense  of 
furnishing  irrigation  facilities  for  agricultural  lands  it  allows 
towns,  villages  and  cities  to  be  included  in  irrigation  districts. 

4th.  That  if  the  Court  should  conclude  that  it  was  com- 
petent for  the  legislature  to  establish  over  any  given  piece  of 
territory  in  this  State  as  many  different  corporations  as  there 
are  separate  public  wants,  yet  the  legislature  is  prohibited  by 
the  constitution  from  enacting  a  law  under  which  any  munici- 
pal corporation  may,  by  a  bare  majority  vote,  incur  any  in- 
debtedness exceeding  in  any  year  the  income  and  revenue 
provided  for  it  for  such  year. 

5th.  That  the  Act  was  unconstitutional  because  no  notice 
or  opportunity  for  a  hearing  is  given  to  the  land  owners. 

6th.  That  the  legislature  had  no  constitutional  power  to 
pass  the  Act. 

7th.  That  the  Act  was  unconstitutional  because  it  provides 
for  issuing  bonds  and  making  assessments  to  assist  in  specu- 
lation and  provides  no  limit  to  expenses;  and  in  that  respect  it 
takes  private  property  without  compensation  or  due  process  of 
law  and  denies  to  the  owners  the  equal  protection  of  the  laws. 

8th.  That  it  was  unconstitutional,  as  being  in  contravention 
of  Sections  4  and  6  of  Article  XI.  of  the  Constitution  of  Cal- 
ifornia, as  it  authorizes  the  creation  of  municipal  corporations 
contrary  to  the  system  of  municipal  government  provided  for. 

9th.  That  the  Act  was  unconstitutional,  in  that  it  is  special 
legislation  and  in  violation  of  subdivisions  10,  11,  2^,  2S  and 
33  of  Section  25  of  Article  IV.  of  the  constitution. 

loth.  That  the  Act  was  an  unconstitutional  delegation  of 
the  power  of  the  legislature  in  that  it  considered  tin-  districts 
as  municipal  corporations. 

nth.  Tliat  the  Act  is  in  violation  ol  Section  5,  Aiiieie  XI. 
of  the  Constitution  of  California,  as  the  first  section  of  the 
Act  provides  for  a  petition  to  the  Board  of  Supervisors  of  the 
county  in  which  the  land  "or  the  greatest  portion  thereof" 

is  situated. 

1 2th.  That  the  Act  was  unconstitutional  because  it  exacts 
from  the  taxpayer  more  than  the  cost  of  the  improvement. 


580  IRRIGATION    IN    CALIFORNIA.  [§  391,  392 

Upon  all  of  these  points  the  Supreme  Court  held  that  the 
Wright  Act  is  within  the  power  of  the  legislature  to  enact; 
and  that  its  provisions -for  the  organization,  management  and 
control  of  such  districts,  and  those  regulating  the  mode  of 
assessments  upon  the  lands  therein  with  which  to  meet  the 
bonds  authorized  by  the  Act  are  constitutional  and  valid. ^ 


§  303.  Proceedings  for  Coiifirnijitioii  of  Orgauiztition. — 

In  the  case  of  Crall  vs.  Board  of  Directors  of  Poso  Irrigation 
District,"  the  Court  held  that  a  special  proceeding  by  the 
directors  of  an  irrigation  district  brought  under  the  Act  sup- 
plemental to  the  Wright  Act,^  providing  for  special  proceed- 
ings in  the  Superior  Court  for  the  confirmation  of  the 
organization  of  the  district  and  of  the  issue  and  sale  of  bonds, 
is  in  the  nature  of  a  proceeding  in  rem  to  determine  the  status 
of  the  district  and  its  power  to  issue  valid  bonds. 

Also  it  was  held  In  re  Madera  Irrigation  District^  that  in  a 
proceeding  for  confirmation  of  the  organization  of  an  irriga- 
tion district,  where  the  organization  is  controverted  by  the 
answer,  it  is  necessary  for  the  directors  of  the  district  to  make 
proofs  to  the  Court,  under  the  ordinary  rules  of  evidence,  that 
a  petition  was  presented  to  the  supervisors,  signed  by  fifty  or 
a  majority  of  the  freeholders  owning  land  within  the  pro- 
posed district;  and  that  the  execution  of  such  petition  cannot 
be  proved  by  recital  in  the  records  of  the  Board  of  Supervisors, 
nor  can  the  petition  itself  be  properly  received  in  evidence 
without  proof  of  its  execution  and  that  the  signers  were 
freeholders  of  the  district. 

iSee  the  very  exhaustive  opin-  not  subject  to  the  constitutional 

ioa  by  Harrison,  Judge.  provisions  respecting  taxation,  but 

Also  see  case  of  Tregea  vs.  Ow-  may  be  levied  upon  all  real  prop- 
ens,  94  Cal.  317;  29  Pac.  Rep.  143,  erty  within  the  district  without 
where  the  Court  held:  That  an  as-  deducting  from  the  value  of  such 
sessment  levied  under  the  provi-  property  any  mortgages  existing 
sions  of  the  Wright  Act  upon  the  thereon. 

property  within  an  irrigation  dis-  287  Cal.  140;  26  Pac.  Rep.  797. 

trict,    organized    thereunder,    al-  3. See  ante  Sec.    368   note;   Stat, 

though  referable  to  the  power  of  1889,  p.  212;  5  Deering,  299. 
taxation,  is  a  distinct  tax,  and  is  4  ga  Cal.  296;  289  Pac.  Rep.  675. 


§392,393]  IRRIGATION    IN    CALIFORNIA.  581 

In  the  case  of  Palmdale  Irrigation  District  vs.  Rathkc'  it 
was  held  that  the  supplemental  Act  of  March  i6,  iSSy,  supra, 
relatinij  to  proceedings  for  the  determination  of  the  validity 
of  an  irrigation  district,  requires  an  appeal  from  thejudgmeut 
to  be  taken  within  ten  days  after  entering  of  judgment,  and 
that  an  appeal  taken  from  such  judgment  more  than  ten  days 
after  the  entry  of  the  judgment  is  not  in  time  an'd  will  be 
dismissed. 

§  393.  Prot'eetliiii;  for  tlu»  ('(nifinu:itiou  of    Bonils. — In 

the  case  of  Crall  vs.  Board  of  Directors  i>i  Poso  Irrigation 
District^  it  was  held  that  the  special  proceedings  by  the 
directors  of  an  irrigation  district  brought  under  the  Act  sup- 
plemental to  the  Wright  Act,-*  providing  for  the  special  pro- 
ceedings in  the  Superior  Court  for  the  confirmation  of  the 
organization  of  the  district  and  for  the  issue  and  sale  of  bonds 
is  in  the  nature  of  a  proceeding  m  rem  to  determine  its  power 
to  issue  valid  bonds  and  the  status  of  the  district.  In  such 
proceeding  constructive  service  of  process  by  publicali«)n  and 
posting,  as  prescribed  by  the  Wright  Act,  is  sufficient  to  give 
the  Court  jurisdiction  of  the  subject  matter  and  of  the  par- 
ties, and  its  judgment  is  valid  and  binding  as  against  them 
and  all  the  world  upon  all  questions  involved  in  the  case  until 
reversed  on  appeal  or  set  aside  by  some  direct  proceedings  in- 
stituted for  that  purpose. 

It  was  held  in  the  case  of  Board  of  Directors  of  Modesta 
Irrigation  District  vs.  Tregea^  that  in  proceedings  of  this 
nature  for  the  judicial  confirmation  of  the  validity  of  bonds 
of  irrigation  districts  the  publication  as  prescribed  in  the 
Act  of  a  notice  of  a  filing  of  a  petition  is  suflTicient  to  give 
the  Superior  Court  jurisdiction  to  render  a  judgment  binding 
upon  the  lands  of  the  district  and  their  owners,  allirming  the 
regularity  of  the  organization  of  the  irrigation  district  and 
the  legality  and  validity  of  its  orders  for  the  issuance  of  its 
bonds.  The  notice  required  to  be  published  under  the  Act 
is  to  be  cfjiistrued  and  :iidt.(l   bv   refcreun-   to  tlu-  stalntr.  and 

I91  Cal.53S;  27   Tac  Kc-p.  7Sv  Stat.  iHSy,  p.   iia;  S  DrcrinK,  299. 

287  Cal.  140;  26  I'ac.  Kc-p.  797.  <  KS  Cnl,  .^24:  2r>  I'lir.  Kcp.  337 

3  vSee    ante    Section     36.S    note; 


582  IRRIGATION    IN    CALIFORNIA.  [§393-395 

is  sufficient  if  it  states  the  filing  of  the  petition  and  the  sub- 
stance of  the  prayer  thereof  and  in  other  respects  conforms  to 
the  statute.  The  proceeding  under  the  statute  is  in  rem,  its 
object  being  to  establish  the  validity  of  the  bonds  as  against 
the  irrigation  districts  and  all  persons  interested  therein;  and 
if  the  statute  has  been  strictly  complied  with  the  judgment 
will  bind  not  only  the  parties  appearing  but  all  the  world, 
notwithstanding  the  fact  that  there  has  been  no  personal 
service  upon  the  land  owners  whose  lands  will  be  assessed  for 
the  payment  of  the  bonds. ^ 

§  391.     Proceeding  to  Include  and  Exclude  Territory.— 

It  was  held  in  the  case  of  Board  of  Directors  of  The  Modesto 
Irrigation  District  vs.  Tregea,^  that  a  city  or  town  may  be 
included  in  an  irrigation  di:->trict  if  it  be  determined  by  the 
supervisors  that  the  lands  comprising  the  city  or  town  would 
be  benefited  by  irrigation.-''  The  Board  of  Supervisors  may 
include  in  the  boundaries  of  an  irrigation  district  all  lands 
which  in  their  natural  state  would  be  benefited  by  irrigation 
and  are  susceptible  of  irrigation  by  one  system,  regardless  of 
the  fact  that  buildings  or  other  structures  have  been  erected 
upon  small  lots,  which  are  thereby  rendered  unfit  for  cultiva- 
tion. The  decision  of  the  Board  of  Supervisors  upon  the 
question  of  fact  as  to  what  lands  will  or  will  not  be  benefited 
by  irrigation  is  final  and  conclusive  and  cannot  be  reviewed 
by  the  Courts,  although  upon  matters  affecting  their  juris- 
diction their  orders  may  be  open  to  review.'* 

§  395.  Same. — Continued. — Upon  the  subject  of  including 
cities  and  towns  in  irrigation  districts  and  taxing  the  prop- 
erty within  those  municipal  organizations  to  aid  in  the  sup- 
port of  the  irrigation  district,  Mr.  Chief  Justice  Beatty,  in  the 
case  of  Modesta  Irr.   Co.  vs.  Tregea,  supra,  said  :     "  It  ap- 

lln  re  bonds  of  Madera  Irriga-  ^See  Stat.  1889,  p.  18;  5  Deering, 
tion  District,  92  Cal.  296;  28  Pac.  295;  and  Stat.  1889,  p.  21;  5  Deer- 
Rep.  272;  Central  Irrigation  Dis-  ing,    297,   and   Ante   Section    360, 
trictvs.  De  Lappe,  79  Cal.  351;  21  and  note. 
Pac.  Rep.  825.  4  Ibid. 

2  88  Cal.  334;  26  Pac.  Rep.  237. 


§395]  IRRIGATION    IN    CALIFORNIA. 


583 


pears  from  the  record  that  the  district  as  originally  organized 
contained  about  one  hundred  and  eight  thousand  acres  of 
land,  including  the  city  of  Modesta.  a  town  covering  about 
two  thousand  acres,  and  having  about  three  thousand  inhab- 
itants and  about  six  hundred  dwelling  houses,  besides  shops. 
stores,  etc. 

"  One  proposition  of  the  appellants  seems  to  be  that  the  mere 
fact  of  the  corporate  existence  of  a  town  or  city,  though  sit- 
uate in  the  midst  of  a  district  susceptible  of  irrigation  by  one 
system,  necessarily  deprives  the  Board  of  Supervisors  of  the 
county  of  the  power  to  include  any  of  the  lands  within  the 
corporate  limits  of  such  city  or  town  in  an  irrigation  district. 
We  say  this  seems  to  be  a  proposition  of  the  appellant,  be- 
cause, although  it  is  not  expressly  stated  in  terms,  it  appears 
to  be  necessary  to  sustain  his  contention,  for  if  it  lies  within 
the  discretion  of  the  board  to  include  in  an  irrigation  district 
any  part  of  the  lands  of  a  town  or  city  upon  the  ground  that 
in  their  judgment  such  part  will  be  benefited  by  irrigation 
under  the  system  proposed,  and  if  the  jutlgnient  of  the  board 
upon  the  question  of  benefits  is  conclusive  of  the  fact — as  we 
shall  show  that  it  is — there  is  no  ground  upon  which  a  Court 
can  say  that  an  order  including  all  the  lands  of  a  city  or  town 
in  such  district  is  void. 

"  The  idea  of  a  city  or  town  is  of  course  associated  with  the 
existence  of  streets  to  a  greater  or  less  extent  lined  with  shops 
and  stores,  as  well  as  of  dwelling  houses,  but  it  is  also  a 
notorious  fact  that  in  many  of  the  towns  and  cities  of  Cali- 
fornia there  are  gardens  and  orchards  inside  the  corporate 
boundaries  requiring  irrigation.  It  is  equally  notorious  that 
in  many  districts  lying  outside  tlie  c(jrporate  limits  of  any 
city  or  town  there  are  not  only  roads  and  highways,  but 
dwelling  houses,  outhouses,  warehouses  antl  shops.  With 
respect  to  those  things  which  determine  the  usefulness  of  irri- 
gation, there  is  only  a  difference  of  degree  between  town  and 
country.  The  advantages  of  irrigation  to  a  town  like  River- 
side, in  San  Bernardino  county,  for  instance,  no  one  could 
deny,  and  the  differences  between  such  a  town  and  those  places 
where  irrigation  would  be  as  manifestly  out  of  place  are  not 
marked  by  any  hard  and  fast  lines  which  wouhl  enable  a  Court 


584  IRRIGATION    IN    CALIFORNIA.  [^395,396 

to  lay  down  a  rule  of  discrimination.  The  question  whether  in 
any  particular  case  a  town  will  as  a  whole  be  benefited  directly 
by  the  application  of  water  for  irrigation  is  in  its  nature,  and 
under  existing  conditions  must  remain,  a  question  of  fact  to  be 
decided  by  that  tribunal  to  whose  discretion  it  has  been  com- 
mitted by  the  legislature.  It  is  very  certain  that  the  legisla- 
ture intended  that  cities  and  towns  should  in  proper  cases  be  in- 
cluded in  irrigation  districts,  for  the  Act  expressly  provides 
for  the  assessment  and  taxation  according  to  their  value,  not 
only  of  city  and  town  lots,  but  also  the  improvements  there- 
on.^ And  this  feature  of  the  law  was  made  an  argument 
against  its  constitutionality  in  the  case  of  Turlock  Irrigation 
District  vs.  Williams,  76  Cal.  360,  in  which  its  constitution- 
ality was  affirmed.  Such  having  been  the  intention  of  the 
legislature  as  is  clearly  apparent,  and  it  being  equally  clear 
and  notorious  as  a  matter  of  fact  that  there  are  cities  and 
towns  which  not  only  may  be  benefited  by  irrigation,  but 
actually  have  in  profitable  use  extensive  systems  for  irrigating 
land  within  their  corporate  limits." 

§  395.  Dissolution  of  Irrigation  Districts.— Although  the 
legislature  has  recently  passed  an  Act  providing  for  the  mode 
of  procedure  for  the  abandonment  of  operations  by  irrigating 
districts  and  for  their  disorganization,^  it  is  held  that  the 
Courts  have  no  power  by  judicial  decree  to  di-ssolve  a  public 
corporation  of  this  kind,  as  formed  under  the  Act  of  1877,  be- 
cause of  non-user.  And  action  cannot  be  maintained  to  dis- 
solve such  a  corporation,  since  in  the  absence  of  law  specially 
conferring  it  Courts  are  without  power  to  dissolve  a  public 
corporation  on  such  grounds.  In  the  very  recent  case  of  the 
people  vs.  Selma  Irrigation  District,^  the  Court  said  upon  this 
subject :  "  The  law  under  which  the  defendant  was  created 
makes  no  provision  for  a  judicial  sentence  dissolving  a  cor- 
poration formed  thereunder  because  of  misuse  of  its  Iranchise 
or  for  a  failure  to  accomplish  the  purpose  of  its  organization, 

1  Stat.  1887,  p.  37,  Sees.  18  etserj.  -igS  Cal.  206;  32  Pac.    Rep.    1047, 

2 See   Stat.    1893,    p.    520;    Ante       1048. 
Section  388. 


§396]  IRRIGATION    IN    CALIFORNIA.  TiSTi 

nor  has  our  attention  been  called  to  any  statute  authorizing 
such  a  decree;  and  as.  in  the  absence  of  a  law  specially  con- 
ferring it,  the  Courts  are  without  power  to  dissolve  a  public 
corporation  for  a  misuser  or  non-user  of  corporate  power  this 
action  cannot  be  maintained." 


CHAPTER  XIII. 
Nevada. 


I.    SUBJECT   TREATED    IN    GEN- 

ERAI^. 
Section.— 

397.  Particular   features  of  State. 
39S.  Irrigation  in  the  State. 

II.   GENERAL   STATUTORY    ENACT- 
MENTS. 

399.  Legislative    Act  of  March  3, 

1866. 

400.  Rights   of  way. — Condemna- 

tion proceedings. —  Ditches 
already  constructed. 

401.  Act  of  March  9,  1889. — Recla- 

mation districts. 

402.  Same. — Board  of  Reclamation 

Commissioners.  —  State  di- 
vided into  districts. — Duty 
of  Surveyor  General. 

403.  Same. — Duties  and  powers  of 

the  Board. 


Section  — 

404.  Same. -Rent  of  water. -Bonds 

to  be  issued. 

405.  An  Act  regulating  the  use  of 

water    for    irrigation    and 
other  purposes. 

406.  Jurisdiction  of  District  Court. 

Statement   to  be  filed  with 
County  Recorder. 

407.  Waters    of    State   to   be    de- 

clared public  property. 

408.  Judicial  proceedings  to  deter- 

mine priority  of  rights. 

409.  Storage    reservoirs. — Preven- 

tion of  waste. 

III.    IRRIGATION  DISTRICT   LAWS. 

410.  District  Law  of  1891. 

411.  Condemnation  of  water  rights 

not  permitted. 

412.  Common  law  in  State. -Ripar- 

ian rights. 


I.  Subject  Treated  in  (xeneral. 

§  31)7.  Particular  Features  of  State.— The  State  of  Nevada 
lies  almost  wholly  within  the  "  Great  Basin"  region,  which 
also  extends  on  the  east  beyond  Nevada,  and  includes  nearly 
one-half  of  the  Territory  of  Utah,  as  well  as  small  portions 
of  Idaho  and  Wyoming.  The  Great  Basin,  as  the  name  im- 
plies, comprises  a  vast  area,  characterized  by  the  fact  that 
within  its  rim  are  no  streams  contributing  water  to  the  ocean. 


§397,398]  NKVAi.A.  587 

All  of  the  precipitation  falliiiij  within  the  irregular  lines 
bounding  it  must  at  some  time  lib  evaporated  atid  again 
returned  to  the  atmosphere.  However,  the  drop  of  rain 
which  has  fallen  within  the  Basin  may  join  other  drops,  be- 
coming a  rivulet  and  later  form  part  of  a  creek  or  large  river, 
and  then  carried  into -some  large  lake;  from  this  lake  it  can 
escape  to  join  the  ocean  only  by  taking  the  form  of  aqueous 
vapor  and  floating  away  with  the  wind.  An  alnu)St  innumer- 
able array  of  smaller  mountain  ranges,  trending  north  and 
south,  fill  the  Great  Basin,  and  diversify  its  surface  by  their 
bare  and  rugged  peaks.  Streams  issue  from  some  of  these, 
but  after  a  short  course  down  the  mountain  side  and  through 
the  long  and  narrow  valley  empty  into  saline  lakes,  or  sink 
in  the  broader  valleys  between  the  ranges.  Over  hundreds, 
or  even  thousands,  of  square  miles  of  lower  mountains  and 
desert  plains  there  may  not  be  a  drop  of  water  found  during 
the  greater  part  of  the  year.  And  on  some  of  these  vast 
plains  for  years  the  rain  does  not  fall. 

Owing  to  the  large  area  of  the  State  of  Nevada  and  its 
small  and  scattered  water  supply  derived  largely  from  springs, 
the  ranches  or  farms  are  at  considerable  distance  from  each 
other,  except  on  the  western  border.  Wherever  a  spring  ap- 
pears in  the  broad  barren  valleys  of  the  State  some  ranchman 
has  bought  or  has  taken  up  a  small  tract  of  land,  sufficient 
to  cover  the  source  of  the  water,  and  owning  this  he  can 
practically  control  thousands,  or  hundreds  of  thousands,  of 
acres  of  grazing  lands.  The  three  rivers,  the  Trnckee.  Car- 
son and  Walker,  together  with  the  Humbolt,  which  flows 
from  the  center  of  the  Basin  towards  the  western  edge,  com- 
prise practically  the  water  supply  of  the  State.  There  are 
other  small  streams  and  many  springs,  but  none  of  them  ol 
great  importance.  The  development  of  the  agricultural  re- 
sources of  the  State,  therefore,  depends  up<m  the  careful  con- 
ser^'ation  and  storage  of  the  waters  of  these  rivers  ahA  their 
utilization  to  the  greatest  possible  .vt.  nt 

§  89S.  IrritjaUoii  in  Uu'  Slato.-li  i^  evident  from  an  in- 
spection of  the  statistics  of  the  rainfall  that  there  is  no  such 
thing  as  farming   without   irrigation   in    Nevada.     The  only 


588  NEVADA.  [§  398 

exception  to  this  rule  is  perhaps  in  the  case  of  small  areas  on 
low  grounds  near  perennial  streams,  the  seepage  from  which 
is  sufficient  to  moisten,  the  sub-soil,  and  thus  crops  are  pro- 
duced without  the  artificial  application  of  water.  The  distri- 
bution of  rain  throughout  the  year  is  of  no  practical  assist- 
ance to  the  needs  of  agriculture,  since  the  greater  part  of  it 
falls  through  the  winter  months.  Taking  the  monthly  aver- 
ages of  thirteen  stations  in  Nevada  for  a  period  of  at  least 
eighteen  years,  as  published  by  the  Signal  Service,  it  appears 
that  the  average  annual  rainfall  for  these  localities  was  a  little 
over  6.  i  inches.  The  distribution  of  this  rain  by  months  is  best 
shown  by  the  following  percentages:  Taking  all  of  these  thir- 
teen stations  during  January  15.8  per  cent,  of  the  total  amount 
for  the  year  fell;  during  February,  13.0  per  cent.;  March,  10.2; 
April,  9.6;  May,  9.0;  June,  5.8;  July,  2.5;  August,  1.8;  Sep- 
tember, 2.5;  October,  6.8;  November,  9.0;  December,  14.0. 
So  taking  the  months  from  November  to  March  inclusive 
62.0  per  cent,  of  the  total  rainfall  for  the  year  fell,  that  is  to 
say,  3.78  inches  fell.  In  the  seven  months  from  April  to 
October  the  average  precipitation  for  the  eighteen  years  was 
only  2.32  inches. 

Owing  to  the  multiplicity  of  small  ditches  deriving  water 
from  the  same  stream  there  constantly  arises  in  the  State  of 
Nevada  conflicts  between  irrigators  as  to  the  distribution  of 
water,  especially  during  the  season  while  the  supply  is  scanty. 
Disputes  of  this  character  are  settled  sometimes  by  private 
agreements,  but  more  often  by  recourse  to  the  Courts.  The 
expense  of  law  suits  for  the  maintenance  of  water  rights  is  a 
heavy  burden  to  the  farmer,  and  there  is  widespread  com- 
plaint of  the  insecurity  of  property.  As  the  land  is  absolutely 
worthless  without  water  the  whole  value  of  it  depends  upon 
an  unimpeachable  claim  to  sufficient  water  to  irrigate  it.  If 
this  claim  is  liable  to  be  constantly  called  in  question  the  value 
of  the  property  must  fluctuate  correspondingly,  and  as  the 
practice  of  irrigation  increases  and  there  is  greater  demand 
for  water  this  is  more  likely  to  occur.  Why  this  insecurity  has 
been  allowed  to  exist,  and  why  the  water  resources  of  the 
rivers  of  Nevada  have  been  allowed  to  go  to  waste  are  ques- 
tions which  naturally   occur   to   every    observer.     There  are 


§398-400]  NEVADA.  :,h9 

reservoir  sites  throughout  tlic  State  in  abuiulaiice.  plenty  of 
flood  water  to  fill  them,  and  vast  tracts  of  fertile  lands  ncoding 
water.  Why  are  not  these  waters  stored,  thus  makin«;  jHis- 
sihle  the  development  of  large  additional  tracts  ?  The  an 
swer  to  these  questions  seems  to  lie  in  the  fact  that  irrigation 
has  grown  up  in  that  State  without  any  order  or  system,  and 
that  each  man  or  group  of  irrigators  takes  all  the  water  to  be 
had  and  cares  little  for  the  needs  of  others.  The  chief  inter 
est  of  the  State  has  been  in  mines,  and  until  very  recentlv 
little  attention  has  been  given  to  the  development  of  agricul- 
ture so  that  wasteful  systems  of  water  distribution  have 
grown  up  and  fastened  themselves  upon  the  community,  and 
the  people  are  slow  to  adopt  new  laws  for  radical  improve- 
ments. 

II.  (ieiieral  Stsitutor.v  Enact  iiicnts. 

§31)1).  Legislative  Act  of  March  :{.  1S(H;.  o:i  March  3. 
1866,  an  Act  was  approved  entitled,  "  An  Act  to  allow  any 
person  or  persons  to  divert  the  watei  of  any  river  or  stream. 
and  run  the  same  through  any  ditch  or  flume,  and  to  provide 
for  the  right  of  way  through  the  lands  of  others."  ' 

Section  i  provides  that  any  person  or  persons  ilesiring  t«i 
construct  and  maintain  a  ditch  or  flume  within  any  one  or 
more  of  the  counties  of  that  State  shall  make,  sign  and 
acknowledge,  before  some  officer  entitled  to  take  acknowledg- 
ment of  deeds,  a  certificate  specifying,  first,  the  name  h\ 
which  the  ditch  or  flume  shall  be  known,  ami  second,  the 
names  of  the  places  which  shall  constitute  the  termini  of  the 
ditch  or  flume.  The  certificate  must  also  be  accompanied 
with  a  plat  of  the  proposed  ditch.  The  work  of  eonstructing 
such  ditch  or  flume  shall  be  commenced  within  thirty  days  of 
the  time  of  making  the  certificate  above  mentioned  and  shall 
be  continued  with  all  reasonable  dispatch  until  (-(iinpleted. 

5? -too.  Rights  of  Way.  (  oiKhMiiniitioii  I'rorrciliiigs.— 
Ditches  Already  Coiistrncted. — Sec  2  i)rovi<les  that  where 
lands  cannot  be  obtained  by  the  consent  f)f  tin-  nw  lur  thereof 

1  Stat.  ih66,  p.  202;  r.iii.  Stil.  iS;\s.  |>.    mh. 


590  '  NEVADA.  [§400,401 

so  much  ot  the  same  as  may  be  necessary  for  the  construction 
of  the  ditch  may  be  appropriated  for  the  same  after  making 
compensation  therefor.  The  section  then  provides  that  each 
party  shall  select  one  appraiser,  and  the  two  so  selected  shall 
select  a  third.  In  case  the  owner  of  the  land  shall  fail  for 
the  period  of  five  days  to  select  an  appraiser  then  it  shall  be 
the  duty  of  the  appraiser  selected  by  the  person  proposing  to 
construct  the  ditch  to  select  a  second,  and  the  two  so  selected 
shall  select  a  third.  And  it  then  provides  that  the  appraisers 
selected  shall  meet  and  appraise  the  land  sought  to  be  appro- 
priated; and  if  the  ditch  owner  shall  tender  to  the  owner  of 
the  land  the  appraised  value  he  is  entitled  to  proceed  with  the 
construction  of  the  ditch  or  flume  over  the  lands  so  ap- 
praised, notwithstanding  such  tender  may  be  refused.  The 
section  then  provides  that  an  appeal  may  be  taken  to  the 
District  Court  at  any  time  within  ten  days  after  such  appraise- 
ment.^ 

' '  Sec.  3.  Nothing  in  this  Act  contained  shall  be  so  construed 
as  to  interfere  with  any  prior  existing  claim  or  right." 

Sec.  4  provides  that  the  Act  was  to  apply  to  ditches  and 
flumes  already  constructed  in  case  of  enlargement  or  exten- 
sion of  the  same.^ 

HOI.  Act  of  March  9,  1889.— Ilecliiiniition  j)istricts.— 

There  were  no  general  provisions  ol  any  importance  from  the 
time  of  the  enactment  above  mentioned  until  the  Act  which 
was  approved  March  9,  1889,  entitled  "  An  Act  to  provide 
for  the  storage  of  water  to  encourage  milling,   mining  and 

i  As  amended  bj'  Act  approved  Court  held  that  the  Act  of  March 

March  5,  1869;   Stat.    1869,    p.  169;  5,  1869,  as  amending   the   Act  of 

Gen.  Stat.  1885,  p.  108,  Sec.  2.  1866,  applies  only  to  cases  where 

2  As  to    general   construction  of  persons  are  desirous  of  construct- 

the     statute     see    Vansickle     vs.  ing  a  ditch  or  flume  through  or 

Haints,    7   Nev.    249;    Dalton    vs.  over  the  lands  of  another,  and  to 

Bowker,  8   Nev.    190;   Hosier    vs.  provide  for   such   right   of  entry 

Caldwell,    7   Nev.   363;  Lake    vs.  upon  such  lands  for  the  purpose 

Tolles,   8    Nev.    285;     Brown    vs.  of  surveying  such  ditch  or  flume, 

Ashlej',  i6  Nev.   311;   Strait  et  al  and  to    declare   how   such   lands 

vs.  Brown  et  al,  16  Nev.  317.  might   be  condemned  where   the 

In   the   case  of   Barnes  vs.  Sa-  same  could  not  be  obtained  by  the 

bron,  10  Nev.    217,    the  Supreme  consent  of  the  owner. 


§401,402]  NEVADA.  51)1 

internal  improvements,  and  to  reclaim  the  arable  desert  lands 
and  develop  the  agricultural  resources  of  the  State  of  Nevada, 
and  to  provide  funds  for  the  payment  of  the  same."  ' 

The  objects  of  this  Act  are  described  in  the  preamble  of 
the  same,  which  is  as  follows:  "  lV/irr<ras,  The  State  of  Ne- 
vada has  received  from  the  general  Government  a  grant  of 
2,000,000  acres  of  land,  in  lieu  of  the  sixteenth  and  thirty- 
sixth  sections  previously  granted  to  the  State  of  Nevada,  the 
proceeds  from  the  sale  of  which  are  to  be  placed  to  the  credit 
of  the  school  fund  of  this  State;  And  -whereas.  Under  the  Act 
of  Congress  approved  Sep.  4,  1841,  and  aii  Act  approved 
March  21,  1864,  a  grant  of  500,000  acres  of  land  was  made  to 
the  State  of  Nevada  for  internal  improvements;  And  -whereas. 
The  selection  of  said  lands  are  not  confined  to  any  particular 
section  of- unappropriated  land;  And  -whereas,  The  greater 
portion  of  unappropriated  lands  in  the  State  of  Nevada  is 
known  to  be  desert,  waste  and  actually  valueless,  and  without 
sale  unless  water  for  the  purpose  of  irrigation  can  be  brought 
upon  them  and  the  land  properly  and  systematically  irrigated, 
crops  of  all  kinds  cannot  be  successfully  raised;  And  -whereas. 
The  permanent  settlement,  growth,  wealth  and  independence 
of  the  State  and  people,  as  well  as  the  sale  of  school  hinds, 
depend  upon  the  reclamation  of  these  desert  lands;  now, 
therefore,"  etc. 

.H02.  Siimc— Hoiinl  ol"  KiMlaiiiation   (  oimnis^ioniTs.— 
State  Divided  Into  Districts.— Diit.v  of  Surv.'.yor  (it'iioral.— 

Section  i  provides  that  a  Board  of  Reclamation  C  )mmissioners 
was  thereby  created,  to  consist  of  four  members  to  be  known 
as  the  "  Board  of  Reclamation  and  Internal  Improvement," 
for  the  storage  of  water  and  reclamation  of  arable  desert  land 
in  the  State.  The  section  also  named  the  commissioners  who 
were  to  hold  the  position  for  the  term  of  two  and  four  years 
or  until  the  election  of  their  successors.     The  section  divided 

1  See  Stat.  1889,  p.  102.  va.la.  t<.    provi.le  for    the   slon.KC 

See  Act  of  March  6,   l8Hy,   Mai.  ami  dislribulioii  of  water,  aii.l  the 

1889,  p.  63,    entitled  "  An   Act  to  issuance  of  boiuU  for  tin-  payment 

authorize   the    Boanl   of  Connnis-  of  tlu-  same." 

.sioners  of   Churchill  County,  Nc- 


592  NEVADA.  [g  402, 403 

the  State  into  seven  "  Internal  Improvement  and  Reclamation 
Districts,"  and  provided  for  the  election  of  the  Commissioners. 

Sec.  2  provides  that  the  Board  shall  procure  information 
and  statistics  in  regard  to  all  public  lands  within  the  State 
and  the  waters  running  therein,  and  the  possibilities  of  re- 
claiming the  land  by  conducting  the  unappropriated  waters 
thereon,  and  report  the  result  to  each  session  of  the  legislature. 

Sec.  3  provides  that  the  Board  should  ascertain  the  most 
practical  methods  of  utilizing  the  waters,  either  for  milling, 
mining,  manufacturing  or  agricultural  purposes. 

Sec.  4  provides  that  it  is  the  duty  of  the  Surveyor  Gen- 
eral to  furnish  the  Board  maps,  profiles  and  estimates,  to  de- 
termine the  cheapest  and  most  economical  and  valuable  routes 
for  canals,  reservoirs  and  other  improvements  for  irrigation 
and  other  purposes. 

§403.  Same. — Duties  uiid  Powers  of  the  Board.— Sec- 
tion 5  provides  that  the  Board  shall  have  the  power  to  divide 
the  State  into  districts  and  appoint  a  Superintendent  for  each 
district,  whose  duty  it  shall  be  to  superintend  the  building, 
construction  and  maintenance  of  the  canal,  dams  and  other 
works  within  his  district. 

Sec.  6  provides  that  the  work  of  building  and  constructing 
any  and  all  works  shall  be  done  by  contract,  and  the  contract 
to  be  let  to  the  lowest  responsible  bidder. 

Sec.  7.  The  Baard  of  CDmraissioners  are  authorized  to  em- 
ploy a  competent  civil  engineer,  whose  duty  shall  be  to  ascer- 
tain the  number  of  ditches  in  each  reclamation  district  and 
the  capacity  of  the  same. 

Sec.  1 1  provides  that  whenever  ten  or  more  persons  inter- 
ested in  irrigation  ditches  in  auj'  district  petition  for  the 
issuance  of  bonds  for  reclamation  purposes  the  Board  shall  at 
the  next  general  election  submit  the  question  to  the  voters  of 
said  district,  and  if  carried  the  Board  shall  issue  and  di-spose 
of  the  bonds,  under  such  rules  and  regulations  as  they  may 
adopt,  and  the  proceeds  shall  be  placed  to  the  reclamation 
fund  of  the  district. 

The  Act  also  provides  for  the  advertisement  for  bids  upon 
the  work  to  be  done,  the  awarding  of  contracts,  how  payments 


§403,-404]  NEVADA. 


yn 


shall  be  made  upon  the  same,  to  fix  a  day  for  the  completion 
of  the  works,  aud  for  the  settlement  for  the  same. 

The  Act  also  provided  that  the  Hoard  was  authorized  to 
construct  a  canal,  ditch  or  other  works  at,  from  or  upon  the 
most  desirable  or  practical  point  upon  any  river  or  water  way 
in  the  State  for  the  purpose  of  milliuij  or  irrigating  the  arable 
lands  in  the  accessible  vicinity  of  such  .selected  river  or  water 
way.  The  total  cost  of  said  canal,  ditch  or  works  should  not 
exceed  the  sum  of  $100,000. 

The  Act  also  provided  that  it  was  unlawful  lor  any  member 
of  the  Board  to  be  interested  directly  or  indirectly  in  any 
contract  for  the  construction  of  any  of  the  works. 

§404.   Same.— Rent  of  Water.— Hoiids  (o   he    Issueil.— 

"  Sec.  20.  The  annual  rent  of  water  within  the  scope  of  any 
canal,  ditch  or  work  created  and  built  by  the  Board  of  Recla- 
mation shall  be  one  dollar  per  acre  per  year,  said  rental  of 
water  shall  be  held  as  a  lien  against  said  lands  " 

Sec.  21  provides  that  the  annual  rent  of  water  shall  be  col- 
lected in  the  same  manner  and  by  the  same  officers  as  taxes; 
and  it  also  provided  that  all  lands  sold  by  the  State  under  the 
provisions  of  the  Act  .shall  be  supplied  with  the  necessary 
water  for  reclamation,  whenever  in  the  jud<;ment  of  the  Board 
it  is  practicable  to  do  so. 

"  Sec.  23.  The  money  herein  appropriated  shall  be  taken 
from  the  State  school  fund  and  placed  to  the  credit  of  the 
reclamation  fund  herein  created,  and  in  its  place  shall  be 
deposited  one  hundred  bonds  of  one  thousand  dollars  each, 
bearing  interest  at  the  rate  of  four  per  cent,  per  annum. 
Said  bonds  shall  run  for  twenty  years,  but  sliall  be  redeem- 
able by  the  State  at  its  pleasure  after  two  years."  It  also 
provided  the  specific  form  for  the  bonds,  lu^w  they  shouM  be 
executed,  and  when  the  interest  should  be  paid. 

"  Sec.  24.  There  shall  be  levied  and  collected  for  the  fiscal 
year  commencing  January  i,  A.  D.,  1.S91,  and  annually  there- 
after, an  ad  valorem  tax  of  two  cents  on  each  one  hundied 
dollars  of  all  the  taxable  projjcrly  in  the  State,  aud  all  sunjs 
derived  from  this  tax   shall   go   into  the   reclamation  interest 


594  NEVADA.  [§404-406 

and  sinking  fund  for  the  payment  of  the  interest  and  redemp- 
tion of  bonds  herein  authorized  by  this  Act." 

§405.  An  Act  Regulating  the  Use  of  VV^ater  for  Irri- 
gation and  Other  Purposes. — On  the  9th  of  March,  1889, 
there  was  another  Act  approved,  entitled  "  An  Act  to  regu- 
late the  use  of  water  for  irrigation  and  other  purposes;  for 
settling  the  priority  of  rights  thereto,  and  to  punish  the  unlaw- 
ful interference  with  such  rights;  to  provide  for  the  condem- 
nation of  land  for  reservoirs;  for  recording  claims  to  water 
rights;  and  the  appointment  and  duties  of  Water  Commis- 
sioners." ^ 

The  Act  provides  that  the  lands  now  irrigated  in  the  State, 
or  which  may  hereafter  be  irrigated,  were  thereby  divided 
into  seven  "  Irrigation  Districts."  Also  that  the  Governor 
was  to  appoint  one  Water  Commissioner  for  each  district.  It 
was  made  the  duty  of  the  Water  Commissioners  to  divide  the 
water  in  the  natural  lakes  or  streams  in  their  districts  among 
the  several  ditches,  taking  water  from  the  same  according  to 
the  prior  rights  of  each  respectively. 

It  also  provides  that  every  person  who  shall  wilfully  open, 
close  or  interfere  with  any  head-gate  or  vvater-box  without 
authority  shall  be  guilty  of  a  misdemeanor,  and  on  conviction 
thereof  shall  be  fined  in  any  sum  not  exceeding  $500  or  im- 
prisonment in  the  county  jail  for  a  period  not  exceeding  six 
months,  or  both  such  fine  and  imprisonment.  Power  was 
given  the  Water  Commissioners  to  arrest  an}'  person  or  per- 
sons so  ofiending. 

Sec.  7  provides  that  said  Commissioners  shall  not  begin 
their  work  until  they  have  been  called  by  three  or  more  ow- 
ners or  managers  controlling  ditches  in  their  several  districts 
by  application  in  writing,  stating  that  there  was  a  necessity 
for  their  action. 

§  406.  Jurisdiction  of  District  Court. — Statement  to  he 
Filed  with  County  Recorder. — The  Act  provides  that  in  all 
questions  of  law  and  questions  of  right  growing  out  of  or  in 
any  way  involved  or  connected  therewith,  jurisdiction   was 

iSiat.  1SS9,  p.  107. 


§406,407]  NEVADA.  ni)5 

thereby  vested  in  the  several  District  Courts  of  the  State.  It 
also  provides,  in  order  that  all  parties  might  be  protected  in 
their  natural  right  to  the  use  of  waters,  that  every  person, 
association  or  corporation  owning  or  claiming  any  interest  in 
any  ditch,  canal  or  reservoir  shall  file  with  the  County  Re- 
corder of  their  count}'  a  statement  of  their  claim  under  oath. 
setting  forth  all  the  particular  facts  relative  to  their  claim. 

The  Act  also  provides  that  thereafterwards  any  person  or 
compan}'  constructing  or  extending  any  ditch  and  intending 
to  use  and  appropriate  any  water  from  any  natural  stream 
shall  file  with  tiie  County  Recorder  of  that  county  before 
the  commencement  of  the  construction  of  the  work  a  state- 
ment containing  all  the  facts  concerning  the  works  and  the 
water  to  be  appropriated;  and  from  the  time  of  filing  any  such 
statement  water  suflScient  to  fill  such  ditch  or  ditches  shall  be 
deemed  and  judged  appropriated;  ''provided,  that  nothing 
herein  contained  shall  be  permitted  to  interfere  with  a  prior 
right  to  said  water  or  to  any  part  thereof;  nnd provided  f'lirther, 
that  such  person  or  persons  or  corporations  shall  within  sixty 
days  next  ensuing  the  filing  of  such  statement  begin  the  ac- 
tual construction  of  such  ditch  or  ditches,  and  shall  prosecute 
the  work  of  the  construction  thereof  diligently  and  con- 
tinuously to  its  completion;  and  provided  further,  that  tlie  be- 
ginning of  all  necessary  survey  of  such  ditch  or  ditches  shall 
be  construed  as  the  beginning  of  said  work  of  construction." 

§  407.  Waters  of  Stale  Declared  to  l>e  Pnhlic  Properly.— 

"Sec.  13.  The  water  of  every  natural  stream  not  heretofore 
appropriated  within  this  State  is  hereby  declared  to  be  the 
property  of  the  public,  and  the  same  is  dedicated  to  the  use  of 
the  people,  subject  to  appropriation  as  herein  i)r(n'ided.  The 
provisions  of  this  Act  shall  apply  to  all  cases  where  the  water 
of  natural  streams  or  lakes  is  appropriated  for  beneficial  i)ur- 
poses,  whether  the  water  be  conducted  through  ditches,  canals, 
flumes  or  tunnels,  and  shall  apply  also  to  cases  where  for  irri- 
gation  purposes  the  water  is  stored  in  reservoirs,  and  the 
owner  or  owners  of  any  ditch,  canal,  flume  or  tniuiel  through 
which  the  water  is  conducted  for  irrigation  purposes,  and  also 
the  owners  of  reservoirs  may  conduct  the  water  therefrom  into 


596  NEVADA.  [§407-409 

and  along  any  of  the  natural  streams  of  the  State,  but  not  so 
as  to  raise  the  waters  thereof  above  high  water  mark,  and  may 
take  the  same  out  again  at  anj^  point  desired;  but  due  allow- 
ance shall  be  made  for  evaporation  and  seepage,  the  amount 
to  be  determined  by  the  water  commissioners  of  the  proper 
district;  subject  to  review  and  determination  by  the  Court 
having  jurisdiction  over  priorities  in  such  distrtct." 

§  408.  Judicial  Proceedings  to  Determine  Priority  of 
Rights. — The  Act  also  provides  that  whenever  any  appro- 
priator  shall  desire  a  determination  of  the  priorities  of  right 
to  the  use  of  waters  from  the  source  from  which  several  ap- 
propriators  draw  the  same  they  shall  present  to  the  District 
Court  a  petition  for  an  adjudication  of  priority  of  rights  be- 
tween several  ditches  in  that  district.  And  it  is  the  duty  of 
the  Court  to  hear  all  the  evidence  that  may  be  offered  by  or 
on  behalf  of  any  person,  association  or  corporation  interested 
in  such  watercourse,  and  adjudicate  and  determine  the  mat- 
ters put  in  evidence  and  enter  a  decree  in  accordance  with  the 
findings  of  fact.  And  the  parties  interested  may  receive  from 
the  clerk  a  certificate  under  the  seal  of  the  Court  showing  the 
date  and  amount  of  appropriations  adjudged  in  favor  of  any 
ditch,  as  determined  by  said  Court  with  reference  to  priority 
to  which  the  same  may  be  entitled.  And  the  holder  of  the 
certificate  shall  exhibit  the  same  to  the  water  commissioner 
of  his  district,  which  shall  be  the  warrant  of  authority  to  him 
for  regulating  the  flow  of  the  water  in  relation  to  such  ditch 
or  canal.  Provisions  are  also  made  that  any  person  feeling 
aggrieved  may  appeal  from  the  District  Court  to  the  Supreme 
Court  of  the  State,  and  specific  rules  are  laid  down  for  the 
procedure  upon  such  appeal. 

§  409.  Storage  Reservoirs. — Prevention  of  Waste.—  "  Sec. 
25.  Persons  desiring  to  construct  and  maintain  reservoirs  for 
the  purpose  of  storing  water  shall  have  the  right  to  take  from 
any  of  the  natural  streams  of  the  State  and  store  away  any 
unappropriated  water  not  needed  for  immediate  use  for 
domestic,  irrigation  or  other  beneficial  purposes;  to  construct 
and  maintain  ditches,  canals,  flumes  and  tunnels  in  the  same 


§409-411]  NEVADA.  597 

manner  provided  by   law   for  the  condemnation   of  lands  for 
right  of  way  for  ditches." 

Sec.  2g.  Provides  that  the  commissioners  shall  so  divide, 
regulate  and  control  the  use  of  water  of  all  streams  in  such 
manner,  as  nearly  as  may  be,  as  will  prevent  unnecessary  waste 
of  water;  and  that  to  that  end  he  shall  so  shut  and  fasten  the 
head-gate  or  gates  of  all  ditches  that  no  more  water  may 
flow  into  the  ditch  than  is  actually  required  and  will  be  used 
for  the  purpose  for  which  such  water  was  appropriated. 

III.  Irriijation  District   Luw. 

§410.  District  Lmv  of  1S91.— On  March  23,  1891,  there 
was  approved:  "  An  Act  to  provide  for  the  organization  and 
government  of  irrigation  and  water  storage  districts  and  to 
provide  for  the  acquisition  of  water  and  other  property  and 
for  the  distribution  of  water  thereby  for  irrigation  purposes.  "> 
This  Act  is  to  a  great  extent  copied  from  the  California  Dis- 
trict Law  of  1887  as  originally  passed  and  including  the 
amendments  thereto  of  1889.- 

Sec.  12  of  the  Act  provides  for  the  condemnation  of  lands 
or  rights  of  way  for  canals  and  reservoirs,  but  it  contains  the 
following  proviso  relative  to  the  acquisition  of  water-rights  by 
condemnation  proceedings:  "  Provided,  that  nothing  con- 
tained in  this  section  shall  authorize  any  interference  with  or 
condemnation  of  any  canal  or  water-right  the  right  to  which 
has  vested  prior  to  the  organization  of  any  district  under  the 
provisions  of  this  Act." 

§  411.  I'ondcMinatioii  of  >Vatcr-Uii.'hts  Not  rcrmitted.— 

The  proviso  contained  in  section  12,  quoted  above,  in  many 
cases  renders  powerless  any  effort  of  those  attempting  to 
organize  an  irrigation  district  under  the  provisions  of  the  Act 
to  successfully  accomplish  the  objects  for  which  it  is  to  be 
organized.     The  Census  Bulletin  upon  irrigation  in  Nevada 

IStat.  iSgi.p.  106.  294;  California    SUI.    1SS9.  p.    18; 

2  See  Ante  Chapter  XII,  Sections  5    Deerin^.   295;    Cahfornia   Mat. 

as8  et  seq;  California  Stat.  iSSj.p.  18S9,  p.  21;  5  DccrinK.  297:    Cali- 

29;    5    DeerinK    P-  287,    California  for.iia  Stat.    1.SS9.  p.  212;  5  Dccr- 

Stat.    1889,    p.    15;    5    DecrinK,   p-  in^'.  2w- 


598  NEVADA.  [§411,412 

issued  February  15,  1892,  says  on  page  12:  "On  nearly 
every  stream  more  water  is  claimed  than  is  available."  This 
was  also  true  at  the  time  the  Act  under  discussion  was  enacted, 
on  March  23,  1891.  This  proviso  has  also  caused  much  dis- 
satisfaction among  the  people  of  the  State,  and  in  many  cases 
has  prevented  the  satisfactor}^  organization  of  irrigation  dis- 
tricts. Under  the  law  as  it  now  stands  all  vested  water-rights 
must  be  purchased  with  the  consent  of  the  owner  thereof  and 
at  his  price.  A  great  stumbling  block  in  the  way  of  progress 
and  the  workings  of  the  law  is  this  proviso,  from  the  fact  that 
nearly  all  the  waters  available  for  irrigation  within  the  State 
are  claimed  by  individual  appropriation. 

§  412.  Coniinoii   Law  in  State  Riparian  Rights. — Up  to 

very  recently  it  was  held  in  Nevada  that  the  comm  )n  law  of 
riparian  rights,  as  understood  by  the  Courts  of  England  and 
those  of  the  Eastern  States,  were  applicable  in  that  State. 
But  a  decision  of  the  Supreme  Court  of  that  State  in  1889,  ^^- 
cided :  That  the  term  ' '  Common  Eaw  of  Englfxnd  ' '  was  em- 
ployed in  the  statute  adopting  it  in  the  sense  it  is  generally 
understood  in  this  countr5%  and  the  intention  of  the  legislature 
of  that  State  was  to  adopt  only  so  much  of  it  as  was  applicable 
to  the  condition  of  the  State  and  the  needs  and  conditions  of 
the  people;  and  it  was  further  held  that  the  common  law 
doctrine  of  riparian  rights  was  unsuited  to  the  condition  of 
that  State.  1 

1  Reno  Smelting  M.  &  R.  Works       Adams,    19  Nev.  78;   6    Pac.  Rep. 
vs.    Stevenson,    20    Nev.    269;    21       242. 
Pac.  Rep.  317;  see  also  Jones  vs. 


chapti-:r  xi\-. 

Washiuirtoi). 


I.    SUBJECT    TREATED   IN  |  Section. 

GENEKAL.  i  4I9-  Same.  —  roualtics. 

Section.—  I  ,^  ,        , 

.^      r>     i-      1        r     .^  r  .^.   .  420.  bame.— LoiKlfinnatioii. 

413.  Particular  features  of  btate.  | 

414-   Irrigation  in  State.  '  421.  vSatne.— Ditch    companies 

deemed    public    carriers. — 
ri.  GENERAi.  STATUTORY  ENACT-  Proceedings    for    adjudica- 


tion  of  water  rights. 

III.    IRRIGATION  DISTRICT  I,A\V. 
422.  Act  of  March  20,  1S90. 


MENTS. 

415.  Right   to    appropriate  water 

for  manifold  purposes. 

416.  Same. — Water  how  appropri- 

r^lQ^\  423.  Same. — Constitutionality     of 

417.  Riglit   to   appropriate    water  irrigation  district  law. 

for  irrigation.  424-   Unit     of      measurement     of 

41S.  Same.— General    rights    pro-  water.  —  Riparian     proprie- 

vided  by  the  Act.  l"""^- 

I.  SiibjiHtt  Treated  in  (General. 

§  4:13.  Particular  S-Yatures  of  State.— The  vStatc  of  Wash- 
ington is  similar  to  Oregon  in  climate  and  topography.  The 
Cascade  range,  which  trends  in  a  direction  nearly  north  and 
south  at  a  distance  of  about  one  hundred  and  filly  miles  from 
the  ocean,  forms  the  most  conspicuous  feature  of  surface  re- 
lief. This  range  divides  the  State  into  two  great  parts,  differ- 
ing greatly  in  climate  and  agricultural  capabilities.  On  the 
western  side  of  the  range  the  annual  precipitation  is  heavy 
and  a  dense  forest  covers  the  mountains  and  smaller  hills, 
while  east  of  the  mountains  the  rainfall  is  much  less,  and 
vegetation  is  comparatively  scanty  and  almost  entirely  depend- 
ant upon  irrigatifiU.  The  great  jjlains  of  the  Columbia  lorm  a 
most  striking  feature  of  arid  lands.  These  extend  from  llie 
foot  hills  of  the  Cascade  range  eastward  to  the  mountains  of 
Idaho,  and  from  the  mountainous  or  brokm  n-ion  bilow  the 


600  WASHINGTON.  [§413-415 

border  of  British  Columbia  southward  across  the  State.  The 
water  supply  of  these  plains  is  exceedingly  small,  but  in  the 
Columbia  River  itself  there  is  an  amount  sufficient  for  all  the 
needs  of  irrigation,  but  unfortunately  the  river  is  hundreds 
of  feet  below  the  level  of  these  arable  lands,  and  its  w^aters 
can  be  taken  out  only  upon  a  very  narrow  strip  of  sandy 
bottom.  The  State  of  Washington  affords  an  interesting 
field  for -the  student  of  irrigation  possibilities,  and  presents 
sonae  results  that  have  attracted  considerable  attention.  Of 
all  the  States  where  irrigation  projects  are  being  carried  for- 
ward Washington  has  one  of  the  greatest  available  water  sup- 
plies in  proportion  to  the  extent  of  arid  land.  But  this  sup- 
ply is  so  situated  that  it  requires  great  enterprises  and  a  large 
amount  of  capital  to  develop  it. 

§  414.  Irrigation  in  State. — Fortunately  for  the  State  of 
Washington  some  crops  can  be  raised  without  irrigation 
nearly  every  year  over  a  great  part  of  these  plains.  But 
wherever  there  is  an  available  water  supply  the  farmers  have 
begun  to  make  use  of  it  for  irrigation  as  an  adjunct  to  the 
rainfall  for  watering  such  plants  as  are  injured  by  the  long 
summer  droughts.  It  is  gradually  being  recognized  that  the 
greatest  prosperity  can  come  only  by  a  thorough  development 
of  the  waters  of  the  State.  And,  as  is  usually  the  casein  the 
earliest  attempts  of  irrigation,  at  present  the  diversion  is  ac- 
complished by  small  ditches  in  which  a  few  farmers  have 
joined  together  to  bring  the  water  from  the  streams  along  the 
lower  levels  and  the  river  bottoms.  From  what  we  have  said 
it  is  very  apparent  that  the  relation  of  irrigation  to  agricul- 
ture is  determined  largely  by  convenience  and  the  question 
of  expense.  And  in  most  counties  throughout  the  State  irri- 
gation is  still  in  the  experimental  state,  being  used  to  tide 
over  an  occasional  drought. 

II.  (General  Statutory  Enactments. 

§  415.  Right  to  Appropriate  Water  for  Manifold  Par- 
poses. — On  March  9,  1891,  the  State  Legislature  passed  an  Act 
which  has  been  embodied  in   the  compiled   statutes  of  that 

State. 1 

1  See  Hill's  Annotated  Statutes,  Sections  1709-1717. 


§415—417]  \VAsiii.\(jT<'N.  r»(il 

Section  1709  provides  tluu  :  'The  rijjht  to  the  ase  of 
water  in  any  lake,  pond  or  flowin^j  stream  in  this  State,  or 
the  right  to  the  use  of  any  water  flowing  in  any  river,  stream 
or  ravine  of  this  State  for  irrigation,  mining  or  manuficturing 
purposes,  or  for  supplying  cities,  towns  or  villages  with  water, 
or  for  water  works,  may  be  acquired  by  appropriation,  and 
as  between  appropriations  the  first  in  time  is  the  first  in  right." 

§  41G.  Sime. — Water  how  Appniprialeil.  The  Act  pro- 
vides that  a  notice  must  be  posted  in  a  conspicuous  place  at 
the  point  of  intended  storage  or  diversion;  it  also  sets  forth 
specifically  what  the  notice  must  contain,  and  that  it  must 
within  ten  days  after  it  is  posted  be  filed  for  record  in  the 
office  of  the  County  Auditor  of  the  county  in  which  it  is 
posted.  The  appropriator  must  commence  the  construction 
of  the  works  within  three  months  after  the  notice  is  posted  if 
it  is  intended  to  store  the  water.  If  the  use  is  by  diversion 
he  must  within  six  months  after  the  notice  is  posted  comjuencc 
the  construction  of  the  works  by  which  it  is  intended  to  divert 
the  water;  and  it  is  expressly  provided  "That  such  works 
must  be  diligently  and  continuously  prosecuted  to  completion 
unless  temporarily  interrupted  by  the  elements."  It  also 
provides  that  by  a  strict  compliance  with  the  above  rules  the 
appropriator's  rights  to  the  use  of  tiie  waters  actually  stored 
or  diverted  relates  back  to  the  time  the  notice  was  posted;  but 
a  failure  to  comply  with  the  rules  deprives  him  of  the  use  ot 
the  water  as  against  a  subsequent  appropriator  of  the  water 
who  faithfully  complies  with  the  same. 

The  right  to  the  use  of  water  acquired  by  appropriation 
may  be  transferred  like  other  property  by  deed,  and  it  also 
provides  that  the  purpose  for  which  water  is  appropriated  ma> 
be  changed. 

i?417.  Ri^'ht   1<)    Appropriale     Water    lor    lrrii;ation. 
On  March  4,  iSgo,  there  was  approved  an  Act  entitled,  "  An 
Act  providing  for  the  use  of  water  for  the  purpose  of  irriga- 
tion, and  providing  for  the  condemnation  of  the  right  of  way 
for  ditches  and  to  carry  water  for  such  purposes."  ' 

1  See  Hill's  Annotated  Statutes.  rSgi.  Sections  1718-1783;  St«l.  1889. 
1890,  p.  706. 


602  WASHINGTON.  [§  417-418 

"  Sec.  1718.  Any  person  is  entitled  to  take  from  any  of  the 
natural  streams  or  lakes  in  this  State  water  for  the  purposes 
of  irrigation  not  heretofore  appropriated  or  subject  to  rights 
existing  at  the  time  of  the  adoption  of  the  Constitution  of 
this  State,  subject  to  the  conditions  and  regulations  imposed 
b}^  \^\\\  provided,  that  the  use  of  water  at  all  times  shall  be 
deemed  a  public  use  and  subject  to  condemnation  as  may 
from  time  to  time  be  provide^  for  by  the  lyegislature  of  this 
State."! 

§  418.  Same.— (General  Riglits   Provided  by   the  Act.— 

The  Act  provides  that  riparian  proprietors  shall  be  entitled 
to  use  unappropriated  waters.  Provisions  are  made  for  con- 
demnation for  right  of  way  of  ditches  and  for  apportioning 
the  water  when  the  volume  in  any  natural  stream  shall  not 
be  sufficient  to  suppl}'  the  continued  wants  of  the  entire 
country  through  which  it  passes.  Power  is  given  to  the 
judge  of  the  Superior  Court  of  the  county  to  appoint  three 
commissioners,  whose  duty  it  shall  be  to  apportion  in  a  just 
and  equitable  manner  a  certain  amount  of  the  water  upon 
certain  alternate  days,  as  they  may  think  best  for  the  interest 
of  all  parties  concerned,  with  due  regard  to  the  legal  rights  of 
all.  The  basis  of  their  apportionment  is  determined  upon  the 
volume  of  water  usually  flowing  in  the  natural  streams;  and, 
in  the  event  of  any  of  the  streams  being  unusually  low,  the 
rights  of  all  persons  to  water  out  of  the  said  streams  are  deter- 
mined in  accordance  with  the  reduction  of  the  water  in  said 
stream  or  lake. 

Sec.  1731  provides  that  all  persons  on  the  margin,  brink, 
neighborhood  or  precinct  of  any  natural  stream  shall  have  the 

1  As  to    the  authority  given  ap-  propriated   the   water  of  a  stream 

propriators     to    rights    in     water  flowing  across  the  public  lands  by 

prior   to  the   passage   of  this  Act  erecting  on  his  own  lands  a  ditch, 

see  Thorp  vs.  Tenem,  i  Wash.  St-  oneacquiring  title  from  the  United 

Rep.  566,   570;    20  Pac.  Rep.  5SS;  States  takes   subject   to   such  ap- 

Ellis   vs.    Pomero}'    Improvement  propriation,  and  he  cannot  by  ob- 

Co.,  I  Wash.  St.  589;  21  Pac.  Rep.  structions  on  his  own  land  divert 

27;  Geddis  vs.  Parish,  i  Wash.  vSt.  the  water  from   the   ditch  of  the" 

589;  21    Pac.    Rep.    314,    where    it  prior  appropriator. 
was   held  that  where  one  has  ap- 


§418-420]  WAsiiiNuToN.  «■.(>:{ 

right  to  place  upon  the  bank  i)t"  such  stream  a  wheel,  steam 
pump  or  other  machine  for  the  purpose  of  raising  water  to  the 
level  required  for  the  use  of  such  water  in  irrij;atingany  land. 
It  provides  for  condemnation  of  right  of  way  over  land  be- 
tween the  point  where  he  takes  the  water  out  from  the  stream 
and  where  he  desires  to  use  it. 

Sec.  1735  provides  that  any  person  entitled  to  water  from 
any  artesian  well  shall  also  have  the  right  to  condemn  a  right 
of  way  from  the  well  to  the  place  of  intended  use. 

§419.  Same.— Penalties.— Sec.  1739  provides  that  during 
the  irrigating  season  it  shall  not  be  lawful  for  any  person  to 
run  any  greater  quantity  of  water  through  his  ditch  than  is 
absolutely  necessary  for  irrigating  his  land.  And  any  person 
who  shall  wilfully  violate  the  provisions  of  this  section  shall 
be  deemed  to  be  guilty  of  a  misdemeanor,  and  upon  convic- 
tion thereof  shall  be  fined  in  an  amount  not  less  than  ;r;ioo 
nor  more  than  Si, 000. 

Sec.  1746  provides  that  any  person  who  shall  wilfully  open, 
close,  change  or  interfere  with  any  head-gate.  water-l)ox. 
ditch  or  dam  without  authority  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  fined  not 
less  than  $50  nor  more  than  $500,  or  imprisoned  not  less  than 
thirty  days  nor  more  than  six  months,  or  may  be  punished  by 
both  fine  and  imprisonment  at  the  discretion  of  the  Court. 

§420.  Same.— Comlemnalion.— Sees.  1751  t)  1754  inclu- 
sive provide  specific  rules  for  condemning  rights  of  way  for 
ditches,  the  appointment  of  appraisers,  their  duties,  with  a 
proviso  that  all  parties  interested  shall  have  a  right  of  api.eal 
to  the  Superior  Court. 

Sec.  1 76 1  provides  that  "Any  person,  association  or  corpo- 
rati6n  desiring  to  condemn  the  riparian  rights  of  persons  in 
any  natural  stream  or  lake  in  this  State  may  do  so  as  follows: 
Such  persons,  firm  or  corporation  shall  file  his.  their  or  its 
petition  in  the  Superior  Court  of  the  county  wluMc-in  said 
stream  or  lake  or  any  part  thereof  is  situated  fr<.m  wliuh  such 
person,  association  or  corporation  desires  t(.  take  the  water 
setting  forth  the  uses  that  the  said  person,  associalion  or  cor. 


604  WASHi^TGToN.  [§420,421 

poration  intends  to  make  of  said  water,  the  amount  of  water 
desired  to  be  taken  and  the  extent  of  time  that  said  water  is 
intended  to  be  used." 

Specific  rules  are  then  laid  down  for  the  procedure  in  con- 
demnation cases. 

Sec.  1774  provides:  "The  right  of  way  herein  given  to 
condemn  the  use  of  water  shall  not  extend  any  further  than 
the  riparian  rights  of  persons  to  the  natural  flow  of  water 
through  their  lands  upon  or  abutting  said  streams  or  lakes, 
as  the  same  exists  at  common  law,  and  is  not  intended  in  any 
manner  to  allow  water  to  be  taken  from  any  person  that  is  used 
by  said  person  himself  for  irrigation,  or  that  is  needed  for  that 
purpose  by  any  such  person." 

§  421.  Same. — Ditch  Compiiiiies  Deemed  Public  Carriers. 
— Proceedings  for  Adjudication  of  Water  llights. — Sec. 
1773  provides  that  any  corporation,  person,  association  or  firm 
owning  or  controlling  a  ditch  shall  be  deemed  to  be  a  public 
carrier,  and  shall  at  all  times  be  subject  to  the  regulations 
prescribed  by  the  Legislature  from  time  to  time. 

Sees.  1777  to  1782  provide  specific  rules  that  whenever  any 
one  or  more  persons,  associations  or  corporations  interested 
as  owners  of  any  ditch  or  canal  in  any  water  district  shall 
present  to  the  Superior  Court  of  any  county  a  motion,  petition 
or  application  in  writing,  moving  or  praying  said  Court  to  the 
adjudication  of  the  priorities  of  rights  to  the  use  of  waters 
for  irrigation  between  the  several  ditches  or  canals  in  such 
district,  the  Court  shall  without  unnecessary  dela}^  proceed 
in  open  court  and  appoint  a  day  for  the  hearing  and  for  taking 
the  evidence  in  sUch  adjudication;  and  the  Court  shall  deter- 
mine the  matter  put  in  evidence  and  cause  a  decree  to  be  en- 
tered determining  and  establishing  the  several  priorities  of 
right  by  appropriation  of  water  of  the  several  ditches  or  cstnals 
in  such  water  districts  concerning  which  testimony  shall  have 
been  offered.  The  Act  then  provides  for  specific  rules  for  the 
procedure  for  such  adjudication,  the  certificate  that  must  be 
issued  to  the  parties  interested  and  the  recording  of  the  same, 
and  the  ditches  and  appropriation  to  be  numbered  in  the  de- 
cree in  the  order  of  the  priority'. 


§  422,  423  J  w  A s  1 1 1 N  ( i t.  .  .\ .  (iOa 

111.  Irriu;ati<ni  Distriil  La\\. 

!^422.  Actof.Harch  ',»!>,  lSJ>!).-On  March  20,  1S90.  there 
was  approved:  "  An  Act  providing  for  the  organization  and 
government  of  irrigation  districts  and  sale  of  lands  arising 
therefrom  and  declaring  an  emergency."  In  general  the  Act 
is  nearly  identical  with  the  California  District  Law  of  1887, 
including  the  amendatory  and  supplementary  Acts  of  1S89, 
with  of  course  the  necessary  changes  ])eing  snltstitnted.' 

§  423.  Slime.— CoJistitutioualit.v  ul"  llu'  lirii;ati«»u  Dis- 
trict Law. — The  constitutionality  of  this  district  law  has 
been  tested  in  the  Courts  of  Washington  in  the  case  of  Hoard 
of  Directors  of  Middle  Kittitas  Irrigation  District  vs.  Peter- 
son.^ This  was  an  action  in  which  the  Hoard  of  Directors 
made  an  application  to  the  Superior  Court  for  a  confirmation 
of  the  proceedings  of  the  district  for  the  issuance  of  bonds. 
The  defendant  appeared  and  answered  the  petition,  the  plain- 
tiff demurred  to  the  answer  and  the  demurrer  was  overruled, 
and  from  the  judgment  thereof  an  appeal  was  taken  by  the 
board  to  the  Supreme  Court.  The  judgment  of  the  Court  be- 
low was  reversed,  with  instructions  to  the  Court  below  to 
enter  a  decree  approving  and  confirming  the  issuance  of  said 
bonds.  Mr.  Justice  Hoyt,  in  rendering  the  judgment  of  the 
Supreme  Court  in  the  case,  said  upon  the  constitutionality  of 
the  Act:  "  It  is  conceded  that  the  scope  of  said  Act  is  such 
that  if  it  is  held  that  the  districts  created  are  such  municii)al 
corporations,'^  said  Act  must  be  held  to  be  unconstitutional 
and  void.  When  any  question  involving  the  constitutionality 
of  an  Act  of  the  legislature  lA  presented  to  a  Court  for  adjudi- 
cation it  calls  for  the  utmost  care  and  consideration  of  such 
Court  in  determining  the  same,  and,  if  this  is  true  in  an  ord- 

ISee      Hiir.s     amiotated      Slat.  Cal.  Slat.  i.SSy.  jj.   212,  5  Di-i-riii).;. 

Sees.  1784-1829,  Stat.  1890,  p.   713;  299. 

also  see  Ante  Chapter  XII,  Sees.  24  WasliiiiKloii  1.J7.  .jyl'ai-.  Ri-p. 

358-388;  California  Stat.  887,  p.  29;  995. 

5  Deering,  p.  287;  Cal.   Stat.    1889;  -'.As  ijrcsiribcd  wilhin  thcnii-aii- 

p.  15;  5  Deering,  p.  294;  Cal.  Stat.  inj^  of  Sec.  6  of  Art.  S  of   Wash- 

18S9,   p.   18;   5  Deering,   295;  Cal.  in^toii. 
Stat.  1889,  p.  21;  5  Deering.  297; 


606  WASHINGTON.  [§423 

inary  case,  it  is  much  more  so  in  the  one  at  bar,  which  pre- 
sents a  question  of  public  policy  of  the  gravest  nature — one, 
in  fact,  upon  which  depends  to  a  great  extent  the  prosperity 
of  a  very  considerable  portion  of  the  inhabitants  of  the  State. 
If  the  Act  in  question  cannot  be  sustained  by  reason  of  such 
constitutional  provision  it  is  conceded  that  no  Act  which 
would  be  effective  for  the  purpose  can  be  enacted  by  the  leg- 
islature until  a  change  is  made  in  the  constitution.  *  *  * 
When  Courts  assume  to  pass  upon  an  Act  of  a  legislature  and 
determine  whether  or  not  it  is  constitutional  the}^  do  not  do 
so  for  the  purpose  of  setting  up  their  judgment  as  against  that 
of  the  legislature.  *  *  *  It  follows,  from  these  considera- 
tions, that  Courts  will  never  hold  a  law  to  be  void  unless  in 
their  opinion  it  clearly  violates  some  express  provision  of  the 
constitution.  *  -i=  *  With  this  rule  for  guidance  then  we 
must  enter  upon  the  investigation  of  the  question  before  us. 
And,  in  view  of  such  rule,  it  will  be  seen  that  it  is  not  for  us 
to  decide  whether  or  not  such  districts  might  not  reasonably 
be  held  to  be  municipal  corporations  within  the  meaning  con- 
tended for,  but  on  the  contrary  it  is  our  duty  to  see  if  there  is 
any  reasonable  classification  of  such  districts  which  will  place 
them  outside  of  the  inhibition  of  such  section  of  the  constitu- 
tion. That  they  are  not  'municipal  corporations'  within  the 
strict  and  better  use  ot  said  term  is  conceded  by  respondent, 
and  is.  indeed,  clear  from  the  authorities;  but  it  is  claimed 
that  said  section  six  of  article  eight  has  b}^  its  language 
made  counties  and  school  districts  as  well  as  cities  and  towns 
'municipal  corporations,'  within  the  meaning  of  said  section, 
and  for  that  reason  the  words  '  other  municipal  corporations  ' 
used  therein  must  be  held  to  have  a  more  extended  meaning 
than  that  usually  attaching  thereto.  This  argument  seems  to 
us  conclusive,  and  from  it  we  are  forced  to  the  conclusion  that 
every  public  corporation  formed  by  the  State  for  the  purpose 
of  carrying  out  an}^  of  the  duties  which  the  State  owes  to  any 
locality,  and  which  by  its  terms  are  made  alike  applicable  to 
all  the  inhabitants  of  the  district  or  locality  affected  thereby, 
must  be  held  to  be  included  within  the  '  other  municipal  cor- 
porations '  named  in  this  section.  *  *  *  It  is  practically 
conceded  b}-  the  respondent  that  these  districts  constitute  pub- 


§423,424]  WASHINGTON.  r,(»7 

lie  corporations  and  not  municipal  ones.  if.  untk-r  our  consti- 
tution, the  words  '  public'  and  'municipal,'  as  thus  applied, 
have  not  been  made  substantially  synonymous.  Such  words  are 
no  doubt  used  at  times  as  expressing  substantially  tlic  same 
idea,  but  it  is  conceded  that  in  the  usual   and  ordinary  sense 
the  word  '  public  '  is  a  broader  word  than  the  word    '  muni- 
cipal,' and  includes  not  only  municipal  corporations  but  others 
of  a  public  character  which  are   not  in   the  ordinary  sense 
'municipal.'     *     *     *     Th^  constitution   clearly    recogiii/.es 
the   importance  of  improvements  of  the  kind  sought  to  be 
furthered  by  this  legislation,  and  yet  to  inteq^ret  the  section 
under  consideration  as  contended  for  by  the  respondent  would 
take  from  the  legislature  the  power  to  deal  with  the  subject 
in  any  eflfective  manner.     The  improvement  contemplated  in 
the  creation  of  the  districts  is  a  local  one  in  the   interest  of 
property  benefited,  and  has  nothing  whatever  to  do  with  the 
taxing  power;  and  it  is  possible  that  this  legislation  could  be 
sustained  upon  the  grounds  that  the   bonds  proposed   to   be 
issued  were  not  a  '  debt '  within  the  meaning  of  the  constitu- 
tional provisions  relating  thereto,  but  were  simply   evidences 
of  the  fact  that  a  special  assessment   for  the   improvement  of 
property  benefited  had  been  made,  and  the  payment  thereof 
provided  for  in  installments,  as  stated   in   said  bonds.     This 
would,  perhaps,  be  a  strained  construction  of  the  legislation; 
but,  rather  than  to  hold  the  same  unconstitutional,    it    mis^lit 
be  our  duty  to  thus  construe   it.     We  are,   however,    better 
satisfied  to   hold  that  these   districts,   although  undoubtedly 
'  corporations  '    in  a  certain  sense,  and  perhaps  '  public  cor- 
porations,' are  not  '  municipal  corporations'  within  the  mean- 
ing of  said  section  of  the  constitution.     Such  seems  to  us  the 
reasonable  construction  of  such   constitutional    jirovision    as 
applied  to  the  Act  under  consideration,  and  we  should   prob- 
ably sustain  the  legislation  without  bringing   to  its  aid    the 
rule  of  construction  above  stated." 

§4'24.  Unit  of  MeasurtMiH'iil  ol'  >Va(n-Kipaiian  rropri.-- 
tors.— On  the  26th  day  of  March,  iHyo.  was  approved  an  Act 
establishing  the  unit  of  measurement  of  water,  which  is  as 
follows:     "  The  unit  of  measure  for  water  for  irrigation,   niin- 


608  WASHINGTON.  [^  424 

ing,  milling  and  mechanical  purposes  in  this  State  shall  be  a 
cubic  foot  of  water  per  second  of  time/" 

Washington  is  one  of  the  States  of  the  arid  region  that 
recognizes  the  rights  of  riparian  proprietors  to  the  natural 
flow  of  the  water  through  their  lands  adjoining  the  streams  or 
lakes  as  the  same  exists  at  common  law.  However,  right  is 
given  to  ditch  companies  to  condemn  any  such  riparian  rights 
in  and  to  the  water  for  public  uses.- 

•iStat.   1890,   p.   9S5;   Hill's    An.  ^ See  Hill's  auuotated  Stat.   Sec. 

St.  Sec.  1862.  1774,  Ante  Sec.  420. 


CHAPTER  XV 
KaiiS4is. 


I.      SUBJECT    TREATED     IN    GEN- 
ERAL. 
Section. — 

425.  Particular  features  of  State. 

426.  Irrigation  in  the  State. 

II.    CtENERAL  STATUTORY    ENACT- 
MENTS. 

427.  An  Act  concerning  irrigation. 

428.  Condemnation  proceedings. 

hi.  an  act  regulating  the  ap- 
propriation and  use  of 
water;  prohibiting  un- 
lawful    USE     thereof; 

PROVIDING  FOR  THE  CREA- 
TION OF  IRRIGATION  DIS- 
TRICTS. 

429.  Diversion  and  appropriation 

of  water  for  industrial  uses. 


Same. — I^imits   and    purpose 
of  the  law. 

Same. — Subterranean  waters. 

Same.— .abandonment.— Con- 
demnation. 
433.  The  right  of  the  useof  watt-r. 


430- 

431- 
432. 


Section.— 

434.  Right   of    way    an»l    hile    for 
1  works  for  appropriation  and 

!  devoting   waters   to   benefi- 

cial uses. 
j  435.  The    construction,     mainten- 
ance and  operation  of  work^ 
for   appropriating   and    de- 
voting waters  to    beneficial 
uses. 
I  436.  Same. — Artesian  wells. 
I  437.  Same. — Co  n  s  t  r  u  c  t  i  o  n  of 
works. — Distrib  ii  t  i  •>  11    t>  f 
waters. 
j  43S.  Water  rates. 
'  439.  The    creation    of      irrigation 
districts      having       certain 
powers. 
440.  Same. — Bonds. — Purchase  of 
rights. — Constru  c  t  i  o  n    of 
I  works. 

I  441.   Interference    with    works  or 
I  water,  and  ])eiiaUies  there- 

I  for. 

442.  Common     law     of     rij>arian 
'  rights  in   State. 


I.  Suhjecl   Tn'atjMl  in  (iriicnil. 

§+25.  Particular  Fcaiun's  ol"  Slate.  Twenty  years  a^o 
one-half  of  the  State  of  Kansas  was  considered  aKricnltnral. 
the  other  one-half  pastoral;  and  snccessful  a^ricuUnral  enter- 
prises were  not  expected  beyond  the  one  hnndredtli  meridian. 
But  in  spite  of  that  idea  the  settler  >fradually  moved  westward. 


610  KANSAS.  [§  425, 426 

He  had  been  told  that  a  year  of  drought  and  starvation  would 
come;  still  he  pushed  on,  breaking  and  subduing  the  soil  and 
showing  by  his  improvements  that  he  had  come  to  stay;  and  in 
spite  of  his  many  disappointments  he  is  there  yet.  The  east- 
ern half  of  Kansas  is  within  the  rain  belt  and  the  portion  west 
of  the  looth  meridian  is  within  what  is  known  as  the  semi- 
humid  region. 

The  States  of  Nebraska  and  Kansas  have  so  great  a  similarity 
in  physical  conditions  and  topographical  features  that  they 
are  very  frequently  discussed  together.     Their  conditions  are 
well  known.     Like  most  localities  they  have  their  virtues  and 
their  failings.     These  States  have  a  rich  and  deep  soil  and  an 
abundance  of  sunshine.     In  their  eastern  half  they  have  suffi- 
cient natural  moisture  to  raise  fair  crops.     But  in  the  western 
half  natural  rainfall   is  only   sufficient    to  lure  the    hopeful 
settler  to  take  up  his  abode  there  and  to    struggle    against 
nature  in  that  unequal  contest  of  dry  farming  in  a  semi-humid 
region.     The  only  crop  that  has  grown  surely  and  abundantly 
year  in  and  year  out  in  these  two  States,  west  of  the  99th 
meridian,  is  the  crop  of  despair.     And  of  this  crop  there  has 
been  a  distressing  overproduction  in  the  last  few  years.     Irri- 
gation is  indispensable  to  the  success  of  agriculture  in    the 
western  half  of  Nebraska  and  Kansas.     It  is  being  generally 
adopted  throughout    this  portion  of  the   States   and   would 
greatly  enhance  the  general  prosperity  if  adopted  in  the  east- 
ern half.     Kansas  and  Nebraska  are  agricultural  States.     But 
the   farmer   is   not   the   only    person   who   should  favor  the 
adoption  of    irrigation    there.     It    is    equally    important    to 
merchants,  bankers  and  owners  of  town  property.     They  have 
all  suffered  keenly  from  failure  of  crops  and  they  will  all  be 
benefited  when  crops  are  made  sure.     A  universal  practice 
of  the  art  of  irrigation  will  supply  the  only  element  now  want- 
ing to  make  these  two  States  hold  their  own  against  any  of 
the  States  of  the  Union. 

§  426.  Irrigation  in  the  "State.  —  Amongst  the  great 
sources  of  water  supply  in  western  Kansas  is  the  under- 
flow or  sheet  water,  which  is  that  vast  underground  store 
from   which   the   ordinary  wells  of  the   region  obtain  their 


§426,427]  KANSAS.  r.u 

supply.  There  are  also  the  natural  waters  ul  the  Republican, 
Smoky  Hill,  Soloman,  Arkansas  and  Cimarron  rivers  and  a 
number  of  smaller  streams,  besides  what  is  called  tlw  stored 
storm  waters,  which  are  those  waters  that  are  saved  by  means 
of  enormous  catch  basins  throughout  the  plains  which  save 
the  rainfall.  These  waters  can  be  utilized  with  very  slight 
cost  and  an  entire  immunity  from  risks  of  dangerous  floods. 
To  utilize  the  surface  waters  does  not  exhaust  the  supply  of 
those  of  natural  streams  to  any  great  extent.  These  surface 
waters  sink  into  the  sands  and  course  tlieir  way  towards  the 
sea,  generally  below  the  river  beds. 

The  people  of  Kansas,  finally  seeing  the  great  benefits  to  be 
derived  from  the  practice  of  irrigation,  have,  through  their 
State  legislature,  adopted  for  that  part  of  Kansas  which  lies 
west  of  the  99th  meridian  a  very  elaborate  and  even  drastic 
code  of  control  over  natural  waters,  culminating  in  provisions 
allowing  the  formation  of  irrigation  districts,  which  last  pro- 
visions in  a  more  or  less  modified  form  have  followed  the  lines 
laid  down  by  the  State  of  California  in  this  respect.  We  will 
now  proceed  to  discuss  the  laws  of  the  State  upon  this  subject. 

II.  General  Statutory  Eiiactinents. 

§427.  An  Act  (Joiiceruinj;  irrigation.— In  iSS6  the  legis- 
lature of  Kan=as  passed  an  Act  concerning  irrigation  of  which 
the  following  is  the  substance:^ 

Sec.  3516  of  said  Act  is  as  follows:  "  The  right  to  the  use 
of  running  water  flowing  in  a  river  or  stream  in  this  State  for 
the  purposes  of  irrigation  may  be  acquired  by  appropriation. 
As  between  appropriators  the  one  first  in  time  is  first  in 
right." 

The  following  sections  provide  that  the  place  of  diversion 
may  be  changed  if  others  are  not  injured  by  such  change;  that 
a  notice  of  appropriation  must  be  filed  and  posted  in  a  con- 
spicuous place  at  the  point  of  diversion;  that  within  sixty  days 
after  the  notice  is  posted  the  claimants  must  commence  the 
construction  of  the  works  and  must  prosecute  the  saim-  dil- 
igently and  uninterruptedly  until  completicjn,    unless    intcr- 

1  See  Gen.  Stat.  1S89,  Sees.  25t4-3523;  Stal.  iSSf,.  Cli.  115. 


612  KANSAS.  [§427,428 

rupted  by  stress  of  weather;  and  by  "  completion  "  is  meant 
conducting  the  water  to  the  place  of  its  intended  use;  also 
that  wlfenever  any  compan}'^  shall  have  constructed  a  canal  it 
is  permitted  a  right  of  way  for  that  purpose  over  the  unoccu- 
pied lands  of  another,  for  which  damages  may  be  awarded, 
but  which  damages  shall  not  exceed  the  value  of  the  land  oc- 
cupied at  the  date  of  the  construction  of  the  canal. 

§428.  Condemuatiou  Proceedings. — On  March  27,  1889, 
there  took  effect:  "An  Act  to  enable  irrigating  ditch  and 
canal  companies  to  condemn  the  right  to  take  water  for  irri- 
gating purposes  from  any  stream  in  the  State  of  Kansas."^ 

Sec.  3524.  Provides:  "  Anj^  and  all  irrigating  ditch  and 
canal  companies  which  have  been  heretofore  organized  or  in- 
corporated, or  which  may  hereafter  become  organized  and  in- 
corporated for  the  purpose  of  procuring  or  furnishing  water 
for  the  purpose  of  irrigation,  which  shall  desire  to  condemn 
the  right  to  take  such  water  from  any  stream  in  the  State  of 
Kansas,  shall  have  the  right  to  procure  such  condemnation 
for  such  purpose  in  the  following  manner. " 

The  Act  further  provides  that  a  petition  must  be  presented 
to  the  judge  of  the  District  Court  of  the  county,  signed  by  the 
company  or  by  its  authority,  stating  the  number  of  miles  of 
ditch  built  or  to  be  built,  and  a  specific  description  of  the 
dimensions  of  the  same  and  describing  the  stream  and  the 
place  where  the  ditch  company  proposes  to  take  water  from 
such  stream  and  asking  the  appointment  of  commissioners  to 
condemn  such  right.  And  the  judge  shall  then  appoint  three 
disinterested  freeholders  of  such  county  to  make  such  con- 
demnation. The  commissioners  must  meet  after  having  given 
notice,  at  the  time  and  place  specified  in  said  notice,  and  hear 
all  claims  for  damages  presented  to  them  in  writing  by  any 
person  or  persons  for  the  condemnation  of  the  right  to  take 
the  water;  and  shall  allow  and  award  such  damages  as  shall 
seem  just,  reasonable  and  fair,  as  compensation  to  the  persons 
presenting  such  claims;  and  after  having  heard  all  claims 
shall  make  a  report  to  the  clerk  of  the  District  Court,  stating 

iGen.  Stat.  1S89,  Sec.  3524-3533;  Stat.  i8Sg,  Ch.  165. 


§428-430]  KANSAS.  613 

the  facts  of  their  investigation.  The  right  of  appeal  is  granted 
from  the  decision  of  the  commissioners  to  the  District  Court. 
The  party  making  application  shall,  within  sixty  days  from 
the  filing  of  such  report,  file  with  the  county  treasurer  of  the 
county  a  certified  copy  of  such  report,  and  shall  pay  the 
amount  of  damages  awarded  by  the  commissioners  in  said  re- 
port, except  in  cases  where  an  appeal  has  been  taken, 

Sec.  3533  provides  that  in  all  cases  where  the  amount  of 
damages  awarded  has  been  paid  the  right  of  the  company  to 
take  the  amount  of  water  condemned  for  such  purposes  shall 
become  absolute,  and  all  persons  shall  be  forever  barred  from 
claiming  damages  or  any  right  to  interfere  with  the  taking  of 
such  waters  except  only  such  as  may  have  appealed;  and  such 
persons  shall  only  have  the  right  to  contest  the  amount  of 
damages. 

III.  An  Act  Regulatiiii?  tlie  Appropriation  and  Use  of 
Water;  Prohibitini;-  Unlawfnl  Use  Thereof;  Providing 
for  tlie  Creation  of  Irrigation  Districts. 

§  429.  Diversion  and  Appropriation  of  Water  for  Indus- 
trial Uses.— On  March  lo,  1891,  there  was  approved  "An 
Act  providing  for  and  regulating  the  diversion,  appropria- 
tion, storage  and  distribution  of  waters  for  industrial  pur- 
poses within  prescribed  limits  and  of  the  construction,  main- 
tenance and  operation  of  works  therefor;  prohibiting  unlawful 
use  thereof,  or  interference  therewith;  providing  for  the 
creation  of  iri-igation  districts  having  certain  powers;  fixing 
penalties  for  and  assigning" jurisdiction  of  offences  hereunder; 
defining  the  powers  and  duties  of  certain  public  officers, 
and  for  other  purposes."  The  following  is  an  abstract  of 
the  law,  with  quotations  of  only  such  portions  as  seem  neces- 
sary.^ 

§  4:^0.  Same.— Limits  and  Purpose  of  the  Law.— Article 
I,  Section  i,  provides:  "  In  all  that  portion  of  the  State  of 
Kansas  situated  west  of  the  ninety-ninth  meridian  all  natural 
waters,  whether  standing  or  running,  and  whetlicr  surface  or 
subterranean,  shall  be  devoted,  first,  to  purposes  of  irrigation 

1  See  Stat.  iSgi,  pp.  223-260. 


614  KANSAS.  [§430-432 

in  aid  of  agriculture,  subject  to  ordinary  domestic  uses,  and 
secondly,  to  other  industrial  purposes,  and  maj''  be  diverted 
from  natural  beds,  basins  or  channels  for  such  purposes  and 
nsQs; provided,  that  no  such  diversion  shall  interfere  with, 
diminish  or  divest  any  prior  vested  right  of  appropriation  for 
the  same  or  a  higher  purpose  than  that  for  which  such  diver- 
sion is  sought  to  be  made  without  a  due  legal  condemnation  of, 
and  compensation  for  the  same;  and  natural  lakes  and  ponds 
of  surface  water  having  no  outlet  shall  be  deemed  parcel  of 
the  land  whereon  the  same  may  be  situate,  and  only  the  pro- 
prietor of  such  lands  shall  be  entitled  to  draw  off  or  appro- 
priate the  same." 

Sec.  2  provides  that  the  appropriation  of  water  shall  be 
deemed  to  be  accomplished  and  effectual  only  as  to  so  much 
water  as  shall  have  been  actually  applied  to  beneficial  uses 
within  a  reasonable  time  after  the  commencement  of  the  work 
by  means  of  which  such  appropriation  is  intended  to  be  made.^ 

§  431.  Siiiue. — Subterranean  Waters. — Sec.  5  provides: 
"  Waters  flowing  in  any  well-defined  subterranean  channels 
and  courses,  or  flowing  or  standing  in  subterranean  sheets  or 
lakes,  shall  be  subject  to  appropriation  with  the  same  eflect 
as  water  of  superficial  channels,  and  no  person  shall  be  al- 
lowed by  drains,  ditches,  fountains,  subterranean  galleries  or 
other  works  to  collect  and  divert  percolating  waters  manifestly 
supplying  such  subterranean  supplies  to  the  prejudice  of  any 
prior  appropriator  thereof. 

"  Sec.  6.  No  person  shall  be  permitted  to  take  or  appro- 
priate the  waters  of  any  subterranean  supply  which  naturally 
discharge  into  any  superficial  stream  to  the  prejudice  of  any 
prior  appropriator  of  the  water  of  such  superficial  channel." 

§  432.  Same.  —  Abandonment.  —  Condemnation. —  Article 
VIII.  also  provides  that  any  prior  right  of  appropriation  shall 
exist  and  continue  only  by  the  exercise  thereof  in  a  lawful 
manner,  and  any  failure  of  an  appropriator  continuously  to 
apply  such  water  to  lawful  and  beneficial  purposes,  without 
due  and  sufficient  cause  shown  for  such  failure,  shall  be 
deemed  an  abandonment  and  surrender  of  such  right. 

1  See  Stat.  1891,  p.  224. 


§432-434]  KANSAS.  615 

"  Sec.  9.  Every  vested  right  of  prior  appropriation  or  di- 
version of  water  for  industrial  uses  shall  be  subject  as  to  the 
right  of  eminent  domain,  and  may  be  condemned  and  com- 
pensated for  for  public  and  beneficial  uses  in  the  same  manner 
and  under  the  same  circumstances  as  govern  the  condemna- 
tion of  other  private  property." 

§433.  The  Right  of  the  Use  of  Water.— x\rt id e  II., 
containing  six  sections,  provides  that  any  person  having  by 
lease,  purchase  or  agreement,  written  or  oral,  procured  from 
any  carrier  water  for  the  irrigation  of  lands  or  other  uses,  and 
having  actually  applied  such  water  to  beneficial  uses,  shall 
thereafter,  upon  payment  of  the  reasonable  rate  prescribed  by 
the  County  Commissioners,  be  entitled  to  continue  in  the  en- 
joyment of  vvater  from  the  works  of  such  carrier  to  the  same 
amount.  It  also  provides  that  water  may  be  taken  for  domestic 
uses  from  any  natural  stream  at  any  public  road  crossingorat 
any  place  upon  the  lands  of  others  where  such  lands  are  unen- 
closed and  uncultivated. 

Any  person  entitled  to  the  use  of  waters  for  irrigation  or 
for  any  other  purpose  whatsoever  may  collect  and  store  up  the 
same  for  use  presently  thereafter,  and  any  person  transferring, 
selling,  leasing,  assigning  or  bargaining  with  reference  to  the 
transfer,  sale,  lease  or  assignment  of  water,  or  any  right  he 
may  have  acquired  to  the  use  thereof,  and  any  person  receiv- 
ing any  money  or  any  other  valuable  thing  whatsoever  in  con- 
sideration of  the  prorating  or  rotating  of  water  shall  be  deemed 
and  taken  to  have  abandoned  all  right  to  the  use  or  enjoy- 
ment of  such  water. 

"  Sec.  6.  Every  right  of  use  of  water  under  this  Act  shall 
be  subject  to  the  right  of  eminent  domain,  and,  as  public  in- 
terest and  economy  may  require,  may  be  condemned  and  com- 
pensated for  as  any  other  private  right  or  property." 

§  43i.  Right  of  Way  anil  Site  for  Works  for  Appro- 
priation and  Devoting  Waters  to  Henetirial  Uses. — Article 
3,  containing  five  sections,^  provides  that  all  necessary  rights 
of  way  and  sites  for  any  works  for  diverting,  storing  or  con- 

1  Stat.  i8gi,  p.  227. 


616  KANSAS.  [^434,435 

veying  water  to  be  applied  to  industrial  uses  shall  be  allowed 
on,  over  and  through  any  lands,  and  on,  over,  across  and 
under  any  ditch,  canal,  conduit,  railroad,  street  or  highway 
by  the  nearest  and  most  practical  route  and  method,  commen- 
surate with  the  least  damage  to  the  property  condemned; />/'^- 
vided,  that  no  owner  of  real  estate  shall  be  compelled  to  grant 
a  right-of-way  over  his  property  if  there  shall  be  already  in 
operation  over  said  property  irrigating  works  sufficient  to 
properly  irrigate  the  same  land  intended  to  be  irrigated  by  the 
canal  for  which  such  condemnation  is  sought.  It  provides  that 
the  procedure  for  condemnation  shall  be  in  the  manner  pre- 
scribed by  the  laws  regulating  the  right  of  eminent  domain 
which  are  or  may  hereafter  be  enforced. 

Sec.  5  provides  that  should  any  of  the  works  for  diverting 
or  storing  the  waters  cease  for  a  period  of  two  years  to  be  in 
operation  the  right-of-way  or  site  shall  cease,  and  it  shall  be 
deemed  to  have  been  wholly  abandoned,  and  all  right,  title 
and  interest  in  and  to  the  lands  theretofore  so  occupied  and 
used  shall  revert  to  and  vest  in  the  owners  at  the  time  of  such 
reversion  of  the  several  tracts  and  parcels  of  land  of  which 
the  lands  embraced  in  such  right  of  way  or  site  formerly 
constituted  a  part. 

§  435.  The  Construction,  Mjiinten;ince  aud  Operation  of 
Works  for  Appropriatins:  and  Devoting;  Waters  to  Bene- 
ficial Uses. — ^  Article  IV.,  Section  i,  provides  that  the  proprie- 
tors of  any  canal  or  other  works  shall  be  liable  for  all 
damages  resulting  from  their  wilful  or  negligent  failure  to 
comply  with  any  of  the  provisions  of  the  Act  or  from  any 
negligence  in  construction,  maintenance  or  operation  of  any 
such  works. 

The  article  also  provides  that  by  the  15th  of  April  in  each 
year  such  works  are  to  be  properly  cleaned  and  repaired,  and 
between  the  15th  day  of  April  and  the  ist  day  of  October  in 
each  year  there  must  be  kept  therein  a  flow  of  water  sufficient 
to  supply  all  those  lawfully  entitled  to  the  use  of  the  same ; 
and  in  case  of  failure  to  supply  such  customers  the  proprietors 

iStat.  1891,  p.  230-242. 


§  435, 436J  KANSAS.  017 

shall  be  liable  for  all  damages  occasioned  thereby.  The 
owners  must  also  construct  a  head-gate,  rating-flume,  or 
measuring  device;  also  waste-gates,  tail-races  and  outlets  tor 
supplying  customers  must  be  provided. 

Sec.  8  provides  that  it  is  the  duty  of  the  superintendent  of 
each  ditch  to  measure  the  water  to  those  entitled  thereto,  and 
in  times  of  scarcity  to  apportion  the  water  ratably  and  accord- 
ing to  the  amount  each  one  is  entitled  to. 

Sec.  9  provides  for  the  distribution  of  the  water  into  the 
various  ditches  or  works  according  to  priority. 

§  436.  Same. — Artesiau  Wells.— Sec.  lo  provides  that  any 
person  sinking  or  boring  for  an  artesian  well  shall  cause  to  be 
kept  a  record  of  the  work,  setting  forth  the  name  and  address 
of  the  proprietor  of  the  well,  the  name  of  the  contractor 
therefor;  the  particular  location  thereof,  the  date  of  commence- 
ment of  work;  the  different  strata  passed  through,  and  the 
depth  at  which  each  thereof  shall  be  reached,  showing  also 
each  flow  of  water  obtained,  and  each  vein  of  water  or  water- 
bearing strata  passed  through;  and  at  the  completion  of  the 
well  he  shall  cause  to  be  ascertained  the  flow  thereof,  if  a 
flowing  well;  and  within  thirty  days  after  completion  of  the 
well  the  proprietor  thereof  shall  make  and  file  in  the  oSice  of 
the  Register  of  Deeds  of  the  county  a  verified  statement  set- 
ting forth  all  the  matters  aforesaid,  the  particular  vein  or  flow 
of  water  claimed  to  be  appropriated  by  means  of  said  well, 
the  total  amount  of  water  so  claimed  in  cubic  feet  per  second, 
if  such  well  be  a  flowing  well  (otherwise  the  distance  from 
the  surface  at  which  the  water  customarily  stands),  what  part 
or  parts  of  such  well  is  or  are  cased,  and  the  interior  diameter 
or  diameters  of  such  casings. 

Sees.  12-14  provide  that  the  person  owning  any  artesian  well 
may  record  such  certificate  in  any  county  or  counties  in  addi- 
tion to  the  county  where  such  well  is  situated;  and  such 
record  shall  be  notice  to  all  parties  boring  or  sinking  any 
artesian  well  in  any  such  county  of  the  priority  of  the  appro- 
priation of  water  claimed  by  the  party  recording  such  certi- 
ficate, and  the  prior  right  of  such  appropriation  may  be  en- 
forced   against   any   and  all  parties  seeking   to    acquire  any 


618  KANSAS.  [§  436, 437 

subsequent  right  of  appropriation  of  such  waters.  The  Act 
also  provides  that  in  such  wells  a  proper  and  sufficient  casing 
must  be  placed  to  prevent  caving  in;  and  the  well  shall  be  so 
cased  as  to  prevent  the  escape  of  the  water  thereof,  and  such 
appliances  must  be  provided  as  will  readily  and  effectually 
prevent  the  flow  of  water  from  the  well.  No  person  con- 
trolling such  a  well  shall  permit  the  waters  thereof  to  flow  to 
waste,  unless,  and  so  far  as  reasonably  necessary,  to  prevent 
the  obstruction  thereof,  or  to  flow  or  be  taken  therefrom  save 
for  beneficial  xisoiS;  provided,  this  shall  not  be  so  construed  as  to 
prevent  the  reasonable  use  of  such  water  for  the  necessary 
irrigation  of  trees  standing  along  or  upon  any  street,  road  or 
highway,  or  for  ornamental  ponds  or  fountains,  or  for  the 
•propagation  of  fish. 

§  437.  Same.— Construction  of  Works.— Distribution  of 
Water. — Sees.  15  to  21  of  the  article  contain  specific  rules  for 
the  construction  of  all  dams  and  embankments  and  other 
works  constructed  for  the  purpose  of  holding,  impounding,  stor- 
ing, collecting  and  conveying  the  water  so  that  the  same  shall 
be  safe,  adequate  and  suSicicnt  for  the  service  required  thereof. 

Sec.  22  provides  that  the  several  persons  entitled  to  the  use 
of  water  of  any  works  may  in  writing  agree  among  themselves 
that  the  water  of  such  works  shall  be  rotated,  distributed  and 
delivered  upon  particular  days  or  parts  of  days  to  particular 
persons  entitled  thereto,  and  on  other  days  to  other  persons, 
as  may  be  in  such  agreement  specified;  and  any  such  agreement 
may  provide  for  such  rotation  during  any  one  season  or  part 
of  season;  and  the  expiration  of  the  time  therein  mentioned 
shall  be  the  same  as  previous  to  the  making  of  such  agree- 
ment. A  copy  of  any  agreement  entered  into  by  consumers 
must  be  delivered  to  the  superintendent  of  the  ditch  or  other 
works,  who  must  cause  the  water  to  be  distributed  conform- 
ably to  the  said  agreement.  If  the  agreement  is  not  satis- 
factory the  proprietors  of  any  canal  or  other  works  not  a  party 
to  the  agreement,  or  any  consumer  of  water  from  the  canal,  is 
entitled  to  make  application  to  the  Judge  of  the  District  Court 
asking  that  the  agreement  be  annulled.  The  necessary  pro- 
ceedings to  that  end  are  then  prescribed. 


§437-4391  KAN.'^AS.  019 

"  Sec.  28.  No  agreement  for  the  rotation  of  water  shall  in 
any  manner  impair  or  affect  the  rights  of  any  prior  incum- 
brances of  lands  theretofore  customarily  irrigated  by  any 
part  of  the  waters  mentioned  in  such  agreement,  he  not  being 
a  party  to  such  agreement;  nor  shall  such  an  agreement,  or 
rotation  of  waters  pursuant  thereto,  in  any  manner  affect  or 
impair  the  rights  or  the  priority  of  right  of  the  parties 
thereto." 

§  438.  Water  Rates.— Article  VI.,  Sections  i  and  2,  provide 
that  whenever  the  purchasers  of  water  from  any  irrigation 
company  shall  consider  the  rate  of  charges  of  such  company 
to  be  unreasonable,  extortionate  or  unjust  they  may  appeal  to 
the  Board  of  Railroad  Commissioners;  and  if  that  Board 
shall  consider  the  complaint  just  they  shall  proceed  to  notify 
the  company  and  the  complainants  that  thirty  days  from  the 
date  of  such  notice  they  will  hear  testimony  in  relation 
thereto;  and  if,  after  hearing  such  testimony,  they  shall  de- 
cide that  such  rates  are  extortionate  and  unjust  they  shall  fix 
a  rate  of  compensation  for  the  use  of  the  water,  which  rate 
shall  be  binding  upon  the  irrigation  company  for  one  vear 
from  the  date  of  such  decision,  and  until  the  further  order  of 
said  Board  therein. 

The  Board  of  Railroad  Commissioners  shall  have  the  same 
powers  in  relation  to  irrigation  companies  that  they  have  in 
relation  in  railroad  companies. 

§  439.  The  Creation  of  Irrigation  Districts  Iiaviiij;  Cer- 
tain Powers.— Article  VII.,  Sections  i  to  24  inclusive,  provide 
for  a  very  concise  and  effective  irrigation  district  law,  which 
is  based  upon,. but  not  copied  after,  the  California  law,  as  in 
other  cases  mentioned. '  For  this  purpose  the  Board  of  County 
Commissioners  is  authorized  to  form  into  convenient  districts 
such  tracts  of  contiguous  territory  as  may  be  conveniently 
irrigated  from  any  given  source  of  supply. 

Sec.  2  provides  that  upon  petition  of  not  less  than  three- 
fifths  of  the  resident  land  owners  of  such  proposed  district, 
setting  forth    the   utility  and    benefit  of  such  proposed    dis- 

'  Stat.  1H91,  p.  243. 


620  KANSAS.  [§  439,  -440 

trict,  and  asking  that  an  election  be  held  to  vote  upon  the 
proposition,  accompanied  by  an  outline  map  or  plat  showing 
all  the  particulars,  and  also  accompanied  by  an  estimate  of 
the  probable  cost  of  constructing  the  works,  the  County  Com- 
missioners may  order  the  County  Surveyor  to  make  the  neces- 
sary estimates.  After  the  verification  of  the  petition  and  the 
statements  therein  contained  it  is  the  duty  of  the  Commis- 
sioners to  order  an  election  to  be  held  within  sixty  days  from 
and  after  the  date  of  such  order. 

Sees.  4-6  provide  rules  for  conducting  the  election  and  that 
if  three-fifths  majority  of  the  qualified  voters  of  such  pro- 
posed district  have  voted  in  favor  of  creating  the  same  the 
Board  of  Commissioners  shall   make  an  order  creating  such 

district,  and  designate  it  "  Irrigation  District  No.  ,  of 

County,   Kansas." 

Sec.  7  provides  for  the  election  of  the  officers  of  said  dis- 
trict called  the  Board  of  Irrigation  Commissioners,  and  con- 
sisting of  a  President,  Secretar}-  and  Treasurer,  to  be  elected 
annuall}-. 

§440.  Same.— Bonds.— Purchase  of  Riglits.— Construc- 
tion of  Works. — Any  district  thus  created  is  authorized  to 
issue  the  bonds  of  said  district  for  the  purpose  of  building  or 
purchasing  any  main,  ditch,  ditches  and  laterals  and  an)^ 
other  work  necessary  for  the  purpose  of  irrigating  the  lands 
in  such  district,  the  total  amount  of  said  bonds  not  to  exceed 
$1  per  acre  for  each  acre  of  land  irrigable  from  and  by  said 
works  so  purchased  or  constructed  or  to  be  purchased  or  con- 
structed; the  bonds  to  be  payable  in  not  less  than  five  years 
or  more  than  thirty  years,  and  to  bear  interest  at  the  rate  of 
six  per  cent,  per  annum;  provision  is  then  made  for  levying 
a  tax  upon  all  real  estate  which  shall  be  dependent  for  irriga- 
tion upon  the  works  so  purchased  or  constructed  within  said 
district  as  may  be  necessar}^  to  raise  sufficient  funds  to  pay 
the  interest  on  such  bonds  and  create  a  sinking  fund  to  meet 
the  payment  of  such  bonds  at  maturity  thereof. 

Sees.  10-14  provide  specific  rules  for  the  election  upon  the 
question  of  bonds. 

Sec.  15  provides  that  whenever  any  irrigation  district  shall 


§440,441]  KANSAS.  tJ2l 

have  secured  a  fund  for  the  purchase  or  constructiou  of  irri- 
gation works  the  Irrigation  Commissioners  shall  submit  the 
question  of  siich  purchase  to  a  vote  of  the  qualified  electors  of 
such  irrigation  district. 

Sees.  1 6  and  17  provide  for  the  construction  of  the  neces- 
sary works  by  contract  by  the  lowest  responsible  bidder. 

Sec.  18  provides  that  whenever  such  works  shall  have  been 
built  or  purchased  by  any  district  the  same  shall  be  under  the 
control  of  the  Board  of  Irrigation  Commissioners;  and  said 
Board  shall  make  all  necessary  rules  and  shall  have  power  to 
dispose  of  the  water  in  said  works  to  all  persons  in  the  dis- 
trict, and  shall  charge  therefor  such  rates  as  such  Board  may 
fix  from  time  to  time, 

^  441.  Interference  With  Works  or  Water  and  Penalty 
Therefor;. — Article  VIII.,  Sections  1-25/  provide  against 
unlawful  interference  with,  injury  to  or  use  of  works  appro- 
priating and  devoting  water  to  beneficial  purposes,  or  the 
water  thereof;  and  for  penalties  therefor  and  proceedings  for 
the  punishment  of  offenses  respecting  the  same. 

Sees.  1-2  of  said  article  provide  that  it  shall  not  be  lawful  for 
any  owner  of  ditches  or  other  works  to  demand  or  accept  from 
any  person  any  money  or  other  valuable  thing  or  any  promise 
therefor  as  a  royalty,  bonus  or  premium,  as  a  condition  pre- 
cedent to  the  right  or  privilege  of  applying  or  bargaining  for 
or  procuring  such  water;  but  such  water  shall  be  sold  upon 
the  payment  or  tender  of  the  charges  fixed  by  the  County 
Commissioners.  And  upon  conviction  of  any  such  unlawful 
charge  for  water  the  ditch  owner  shall  be  deemed  guilty  of  a 
misdemeanor  and  punished  by  a  fine  not  less  than  $ioo  nor 
more  than  $5000  or  imprisonment  for  a  term  of  not  less  than 
three  months,  or  both  such  fine  and  imprisonment,  at  the  dis- 
cretion of  the  Court.  The  Act  also  provides  for  severe  penal- 
ties for  the  refusal  to  farnish  water  upon  the  proper  demand 
and  tender  of  charges,  where  such  water  might  be  furnished; 
also  punishment  for  any  Superintendent  having  charge  of  any 
ditch  who  shall  neglect  or  refuse  to  deliver  water  as  in  the 

'  Stat.  1891,  p.  250. 


622  KANSAS.  [§  441, 442 

Act  provided  to  any  person  entitled  thereto;  also  penalties 
upon  conviction  of  any  person  for  permitting  water  to  run  to 
waste;  for  unlawfully  raising  head-gates,  or  in  any  manner 
causing  the  water  to  run  out  of  the  ditch  or  works;  also  a  severe 
penalty  for  not  complying  with  the  law  as  set  forth  in  a  pre- 
vious section  relative  to  artesian  wells,  and  other  penalties  are 
provided  for  the  failure  to  construct  and  control  and  manage 
the  works  which  are  not  necessary  to  recite  here. 

§  H2.  Common  Law  of  Riparian  Riglits  in  State. — Kansas 
is  also  one  of  those  States  that  recognize  and  protect  the  com- 
mon law  rights  of  riparian  proprietors  in  and  to  the  waters  of 
streams  flowing  over  or  adjoining  their  lands.  The  right  to 
the  use  of  water  of  a  non-navigable  stream  by  the  riparian 
owner  is  held  by  the  Supreme  Court  not  to  be  an  easement, 
but  a  part  of  the  land  itself.  It  is  connected  with  and  in- 
herent with  the  property  in  the  land  and  passes  by  a  convey- 
ance of  the  land.^ 

1  Shamleffer  vs.   Council  Grove  Peerless  Mill  Co.,  i8  Kau.  24. 


CHAPTER  XVI. 
Utah. 


I.   SUBJECT     TREATED   IN    CxEN- 
ERAL. 
Section. — 

443.  Particular   features  of  Terri- 

tory. 

444.  Irrigation  in  territory. 

II.    GENERAL      STATUTORY      EN- 
ACTMENTS. 

445.  Priority  of  water-rights. 

446.  Same.— Primary  water-rights. 

447.  Same.— Secondary  rights. 

448.  Same.— Measurement    of 

water.— Water-rights  per- 
sonal property. — Abandon- 
ment. 

449.  Same.— Waste. — Preferences. 

— Rights  of  way. 


Section. — 

450.  Same.— Priority      of      rights 

continued. 

451.  Same. — Authorities  discussed 


452. 


Same. — Authorities    con- 
tinued. 

III.    IRRIGATION  DISTRICT  LAW. 

453.  Oiganizalion     of     irrigation 

districts. 

454.  Officers   of  districts.— Duties 

of  trustees. — Duty  of  County 
Court. 

Power     of     trustees. — Lakes 
and  ponds. 

Taxes. — Condemnation    of 
land  for  right  of  way. 
457.  Riparian  rights  in  the  terri- 
tory. 


455- 
456- 


I.  Subject  Treated  in  General. 

§  443.  Particular  Features  of  Territory.— We  must  take 
into  consideration  in  this  connection  the  fact  that  Utah  in  its 
natural  state  was  but  little  less  than  a  desert.  Its  streams 
capable  of  being  utilized  are  in  general  small;  and  its  valleys, 
hemmed  in  as  they  are  by  lofty  ranges  of  the  Rocky  Moun- 
tains which  draw  the  moisture  from  the  clouds,  are  naturally 
the  most  arid.  The  northern  and  western  parts  of  the  Terri- 
tory lie  within  the  great  basin  of  the  continent,  from  which 
no  water  escapes  except  by  evaporation;  and  the  western  and 
southern  parts  of  the  Territory  are  in  the  drainage  basin  of 
the  Colorado  river,  everywhere  distinguished  by  lofty 
plateaus  and  deep  canyons,  with  the  river  itself  many  hun- 


624  UTAH.  [§443,444 

dred  feet  below  the  surrounding  countr)^  The  Wasatch 
Range  of  mountains  runs  in  a  general  north  and  south  direc- 
tion through  the  center  of  the  northern  half  of  the  Territory, 
wringing  from  the  clouds  the  moisture,  thus  preventing  any 
great  precipitation  in  the  valleys.  But  in  the  winter  the 
moisture  in  the  shape  of  snow  being  stored  up  in  the  mountains 
until  needed  renders  the  counties  in  the  valleys  very  pros- 
perous. The  small  streams  issuing  from  this  great  range  have 
cut  through  the  mountains  and  as  a  general  rule  pour  their 
waters  toward  the  west,  ultimately  flowing  into  the  Great 
Salt  Lake.  This  lake  is  but  the  remnant  of  a  great  body  of 
fresh  water  which  occupied  all  the  valleys  of  western  Utah, 
and  from  whence  came  the  rich  sediments  which  render  the 
broad  bottom  lands  so  fertile.  The  valleys  situated  at 
the  base  of  this  range  of  mountains,  although  exceed- 
ingly arid  in  climate,  receive  many  streams  which  carry  a 
large  part  of  the  precipitation  which  has  fallen  upon  the  high- 
est summits,  and  are  thus  most  favorably  situated  for  cheap 
and  effective  irrigation.  The  valleys  further  to  the  west,  how- 
ever, though  equally  fertile,  do  not  receive  streams  as  large 
or  permanent,  from  the  fact  that  the  mountains  bounding 
them  are  of  less  altitude. 

§  444.  Irrigation  isi  Territory.— Utah  occupies  the  central 
position  in  the  "arid  region,"  and  therefore  the  details  of 
irrigation  therein  possess  more  than  ordinary  interest,  from  the 
fact  that  t'hey  represent  conditions  intermediate  between  those 
of  the  north  and  the  south,  the  east  and  the  west.  Besides 
this,  the  irrigation  methods  and  systems  have  been  developed 
by  men  who.  unaided  by  capital  or  previous  experience,  have 
introduced  methods  of  their  own,  and,  taught  by  repeated 
failures,  have  finally  achieved  success.  The  country  being 
arid  in  the  highest  degree  the  value  of  the  land  is  dependent 
wholly  upon  the  amount  of  water  to  which  it  is  entitled;  the 
most  fertile  areas  being  almost  valueless  without  water.  Utah 
offers  a  striking  contrast  to  the  rest  of  the  arid  region  in  the 
details  of  the  customs  of  distribution  of  waters  according  to 
the  priority  of  rights  and  also  in  the  regulation  and  control 
by  the  irrigator.     With  few  exceptions  the  canals  and  systems 


§  444, 445]  UTAH.  626 

of  ditches  have  been  built  b}-  farmers  and   are  controlled  by 
them  in  ever}-  minute  detail. 

The  point  has  long  since  been  reached  when  all  the  easily 
available  water  has  been  appropriated,  and  the  increase  of  the 
cultivated  area  has  been  due  to  a  more  careful  utilization  of 
the  supply.  But  in  nearly  ever}^  valley  in  Utah  there  is  now 
more  land  under  cultivation  than  there  is  water  to  mature  the 
crops  in  all  years.  The  principle  was  early  established  among 
the  farmers  of  that  Territory'  that  those  who  first  made  use  of 
the  water  should  ever  afterwards  be  entitled  to  a  sufficient 
amount  to  irrigate  the  area  of  land  originally  cultivated  by 
them;  and  the  later  comer,  whenever  scarcity  occurred, 
should  not  take  the  water  until  those  enjoying  prior  rights 
had  satisfied  their  needs,  the  latest  comer  being  the  first  to  be 
deprived  and  those  settling  before  him  losing  their  water 
supply  in  succession  in  the  converse  order  of  their  acquisition 
as  it  became  less  and  less. 

II.  (General  Statutory  Euactments. 

§  445.  Priority  of  Water  Rights. — February  20,  1880,  an 
Act  was  approved  for  recording  vested  rights  for  the  use  of 
water  and  regulating  their  exercise  which  is  worthy  of  note, 
as  it  differs  greatly  from  the  statutory  laws  upon  this  subject 
in  other  States  and  Territories  of  the  arid  region.^ 

Sec.  2775  provides  that  the  selectmen  of  the  several  coun- 
ties of  this  Territor}'  are  hereby  created  ex-ofl&cio  Water 
Commissioners  for  their  respective  counties,  whose  powers 
and  duties  are  prescribed  to  be  as  follows:  They  are  to  make 
and  cause  to  be  recorded  such  observations  as  they  may  deem 
necessary  of  the  quantity  and  flow  of  water  in  the  natural 
sources  of  supply;  the  average  flow  thereof  at  any  season  of 
the  year,  and  to  hear  and  determine  all  claims  to  the  use  of 
water,  and  on  receipt  of  satisfactory  proof  of  any  right  having 
vested  to  issue  to  the  person  owning  such  right  a  certificate 
therefor  for  recording;  and  to  generally  oversee  the  distribu- 
tion of  the  water  within  their  respective  counties  to  all  par- 
ties having  joint  rights  therein,  and  to  any  natural  source  or 

1  vSee  Compiled  I.aws,  1888,  Vol.  II.  Sees.  2775-2779. 


626  UTAH.  [§445,446 

supply;  and  in  case  of  dispute  between  any  such  parties  as  to 
the  nature  and  extent  of  their  rights  to  the  use  of  water,  or 
right  of  way,  or  damages  therefor,  to  hear  and  decide  upon 
all  such  disputed  rights  and  to  file  a  copy  of  their  findings 
and  decisions  as  to  such  rights  with  the  County  Recorder,  and 
to  distribute  the  water  according  to  such  decisions  and  find- 
ings, unless  otherwise  ordered  by  a  Court  of  competent  juris- 
diction. 

Sec.   2777  provides:     "  The  certificate  of  the  Water  Com- 
missioners shall  state  generally  the  nature  and  extent  of  the 
right  to  use  water  of  the  person  or  corporation  to  whom  it  is 
issued,    and    must  be   filed   with    the    County    Recorder    for' 
recording." 

Sec.  2779.  "  No  person  or  corporation  shall  maintain  any 
suit  at  law  or  in  equity  for  the  determination  of  the  existence 
or  extent  of  ally  right  or  rights  to  the  use  of  water  in  this 
Territory  until  after  the  decision  of  the  proper  County  Com- 
missioners or  of  the  proper  Board  of  Reference,  as  the  case 
may  be,  unless  said  Commissioners  or  Board  shall  fail  and 
neglect  to  hear  and  decide  such  person's  claim  of  right  to  use 
of  water  for  more  than  three  months  after  such  person  may 
have  presented  in  writing  his  claim  or  claims  and  evidence 
in  support  thereof  for  adjudication  Provided,  this  section 
shall  not  be  construed  to  affect  or  impair  the  authority  or 
jurisdiction  of  any  Court  in  the  issuance  of  a  temporary  in- 
junction or  restraining  order  in  such  cases,  or  to  abridge  the 
right  of  any  person  aggrieved  by  any  such  decision  to  main  - 
tain  an}^  lawful  suit  or  appeal  after  such  decision  may  have 
been  made." 

§446.  Same. — Primary  Water  Rights. —  Sec.  2780  pro- 
vides: "  A  right  to  the  use  of  water  for  any  useful  purpose, 
such  as  for  domestic  purposes,  irrigating  lands,  propelling 
machinery,  washing  and  sluicing  ores,  and  other  like  pur- 
poses, is  hereby  recognized  and  acknowledged  to  have  vested 
and  accrued  as  a  primary  right  to  the  extent  of,  and  reason- 
able necessity  for,  such  use  thereof  under  any  of  the  follow- 
ing circumstances: 

"  I.   Whenever  any  person  or  persons  shall  have  taken,  di- 


§  446]  UTAH.  627 

verted  and  used  any  of  the  unappropriated  water  of  any 
natural  stream,  water-course,  lake  or  spring  or  other  natural 
source  of  supply. 

"2.  Whenever  any  person  or  persons  shall  have  had  the 
open,  peaceable,  uninterrupted  and  continuous  use  of  the 
water  for  an  uninterrupted  period  of  seven  years." 

In  construing  this  section  the  Supreme  Court  of  the  Ter- 
ritory, in  the  case  of  City  of  Springville  vs.  Fulmer,^  held: 
That  where  a  city,  with  consent  of  original  appropriators, 
took  control  of  the  waters  of  a  certain  creek  and  distributed 
them  to  the  inhabitants  of  a  city  the  right  to  exercise  such 
control  vested  in  the  city,  and  it  was  authorized  to  maintain 
a  suit  to  enjoin  an  individual  from  diverting  the  waters  to 
his  own  use. 

In  the  case  of  Holman  vs.  Pleasant  Grove  Citj^^the  Su- 
preme Court  held:  That  where  b}^  common  consent  a  munici- 
pality has  for  many  years  regulated  the  appropriation  of  the 
waters  of  a  certain  river  for  irrigation  purposes,  by  allowing 
a  pro  rata  distribution  among  the  appropriators,  in  case  of 
deficiency  it  has  no  right  to  subsequently  divide  the  appro- 
priators into  two  classes,  according  as  their  use  begun  before 
or  after  a  certain  arbitrary  date,  and  to  restrict  only  those  of 
the  second  class;  but  all  must  be  served  alike.  And  Mr. 
Chief  Justice  Zane,  in  rendering  the  opinion,  said  upon  this 
subject:  "  When  the  right  according  to  priorit}^  is  abandoned 
and  the  city  takes  control  and  assumes  and  exercises  the 
authority  of  distribution,  with  the  consent  of  the  holder  of  the 
right,  he  must  be  held  to  subject  himself  to  reasonable  regu- 
lations- to  be  adopted  and  enforced  by  the  municipality. 
Ordinances  or  by-laws  of  a  city  regulating  and  providing  for 
the  distribution  of  water  to  its  residents  should  be  reason- 
able. They  should  be  equal.  Pleasant  Grove  City  had  no 
right,  arbitrarily,  to  throw  all  the  appropriators  before  1865 
into  one  cla.ss,  and  all  appropriating  after  1865  into  another 
class.  Such  discrimination  was  inequitable  and  unequal  and 
therefore  void.  To  ascertain  the  precise  day  that  water  was 
first  used  on  each  lot   of  ground  or  tract  of  land   within  the 

I7  Utah,  450;  27  Pac.  Re]).  577.     -S  Utah,  78;  30  Pac.  Rep.  ~2. 


628  UTAH.  [§  446-448 

limits  of  a  city  would  be  impracticable,  and  to  give  all  the 
water  in  dry  weather  to  the  residents  on  the  property  first 
irrigated  and  leave  those  on  property  irrigated  later  without 
any  water  would  be  a  great  hardship  to  them.  When  the 
people  of  a  city  surrender  their  control  of  its  water  supply, 
and  there  is  not  enough  to  furnish  all  as  much  as  they  need, 
the  municipality  should  make  a  pro  rata  reduction  in  propor- 
tion to  the  amount  required  by  each.  By  acquiescing  in  the 
distribution  of  water  to  them  by  the  city  the  appropriators 
must  be  regarded  as  subjecting  their  rights  to  such  power  to 
regulate  the  use  of  them  as  the  municipality  possesses." 

§447.  Same. — Secondary  Rights. — Sec.  2781.  "A  sec- 
ondary right  to  the  use  of  water  for  any  of  said  purposes  is 
hereby  recognized  and  acknowledged  to  have  vested  and 
accrued  (subject  to  the  perfect  and  complete  use  of  all  primary 
rights)  to  the  extent  of,  and  reasonable  necessity  for,  such  use 
thereof  under  any  of  the  following  circumstances: 

"  I .  Whenever  the  whole  of  the  waters  of  any  natural 
stream,  water-course,  lake,  spring  or  other  natural  source  of 
supply  has  been  taken,  diverted  and  used  by  prior  appropri- 
ators for  a  part  or  parts  of  the  year  only,  and  other  persons 
have  subsequently  appropriated  any  part  or  the  whole  of  such 
water  during  any  other  part  of  such  year,  such  person  shall 
be  deemed  to  have  acquired  a  secondary  right. 

"2.  Whenever  at  a  time  of  unusual  increase  of  water,  ex- 
ceeding seven  years'  average  flow  of  such  water  at  the  same 
season  of  each  year,  all  the  water  of  such  average  flow  then 
being  used  by  such  prior  appropriators,  other  persons  shall 
appropriate  and  use  such  increase  of  water,  such  person  shall 
be  deemed  to  have  acquired  a  secondary  right."  ^ 

§  448.  Same.— Measiireiiieut  of  Water.— AVater-Rights 
Personal  Property. — Abandonment. — The  Act  also  provides 
for   the   measurement    of  water  by  cubic  inches  or   relative 

'    1  Where  by  agreement  defendant  uncertainty.     Smith  vs.   Phillips, 

has  an  interest,  but  there  is  a  con-  6  Utah,  376;  City  of  Springfield  vs. 

flict  as  to  its  extent,  a  decree  that  Holley,  23  Pac.  Rep.  933.  See  also 

the  defendant  have  the  use  of  one  Nephi  Irrigation  Co.  vs.  Jenkins,  8 

good  ditch  is  fatally  defective  for  Utah,  369;  31  Pac.  Rep.  986. 


§  448, 449]  UTAH.  629 

time;  and  that  such  water-rights  may  be  appurtenant  to  the 
land  upon  which  water  is  used,  or  it  may  be  personal  property 
at  the  option  of  the  rightful  owner  of  such  right. 

Sec.  2783  provides  that  a  continuous  neglect  to  keep  in  re- 
pair any  means  of  diverting  or  conveying  water,  or  a  con- 
tinuous failure  to  use  any  right  to  water  for  a  period  of  seven 
years  at  any  time  after  the  passage  of  this  Act,  shall  be  held 
to  be  an  abandonment  and  forfeiture  of  such  right;  and  that 
such  water-rights  may  be  conveyed  with  the  land  or  it  may 
be  reserved  by  the  terms  of  the  conveyance.^ 

Sec.  2784  provides:  "All  rights  to  the  use  of  water  and  all 
means  of  diverting  water  shall  be  exempt  from  taxation,  ex- 
cept for  the  purpose  of  regulating  the  exercise  of  the  use  of 
such  right,  in  all  cases  where  the  land  or  other  property  upon 
which  the  water  pertaining  to  such  rights  is  assessable  for 
taxation,  but  in  making  the  assessment  the  assessor  shall  esti- 
mate the  increased  value  of  such  land  or  other  property 
caused  by  the  use  of  such  water."  ^ 

§  441).    Same.— Waste.— Preferences.— Rights  of  Way.— 

The  Act  also  provides  that  all  persons  using  water  must  pro- 
vide suitable  ditches  for  conveying  surplus  water  into  the 
natural  channel  to  the  satisfaction  or  approval  of  the  Water 
Commissioners,  and  that  no  water  must  be  permitted  to  run 
to  waste. 

Sec.  2787  provides  that  whenever  the  waters  of  any  source 
of  supply  are  not  sufficient  for  the  service  of  all  those  having 
primary  rights  to  the  use  of  the  same  such  water  shall  be  dis- 
tributed to  each  owner  of  such  right  in  proportion  to  its  ex- 

1  As  to  the  construction  of  the  protest  which  alleged  that  plain- 
above  section  by  the  Supreme  tiff  was  the  owner  and  in  posses- 
Court  see  the  case  of  Stalling  vs.  sion  of  a  certain  water  system, 
Ferriti,  7  Utah,  447;  27  Pac.  Rep.  "designed  and  used  for  the  pur- 
686.  pose  of  conveying   water  from  a 

2  In  the  recent  case  or  Bear  Lake  river  to  a  certain  city  for  the  pur- 
and  River  Water  Works  and  Irri-  pose  of  supplying  the  inhabitants 
gation  Co.  vs.  Ogden  City  (Utah),  thereof  for  domestic  use  and  irri- 
33  Pac.  Rep.  135,  the  Supreme  gation  purposes  and  charging 
Court  held  that  a  complaint  in  an  therefor,"  showed  no  exemption 
action  to  recover  taxes  paid  under  under  the  above  statute. 


630  UTAH.  [§  449, 450 

tent,  but  those  using  the  water  for  domestic  purposes  shall 
have  the  preference  over  those  claiming  for  any  other  pur- 
poses; and  those  using  the  water  for  irrigation  shall  have  the 
preference  over  those  using  the  same  for  any  other  purpose 
except  domestic  purposes;  provided,  such  preference  shall  not 
be  exercised  to  the  injury  of  any  vested  right  without  just 
compensation  for  such  injury. 

Sec.  2788,  as  amended,  provides  that  right-of-way  for  irri- 
gation ditches  may  be  obtained  by  condemnation.  Provision 
is  made  for  appraisement  in  case  of  disagreement;  method  of 
selecting  appraisers  and  their  duties;  that  appeal  may  be 
taken  to  the  District  Court  from  the  award  of  the  appraisers; 
liability  of  ditch  owners  for  damages,  and  how  notice  may 
be  given  of  intention  to  construct  or  enlarge  canals  or 
ditches.^ 

§  450.  Same. — Priority  ol*  Rights  Coiitiuuetl. — From  the 
above  we  can  see  that  Utah  offers  a  striking  contrast  in  its 
laws  to  the  other  States  of  the  arid  region.  For  con- 
venience the  rights  are  not  held  in  the  exact  order  of  settle- 
ment, but  are  divided  into  classes.  All  older  settlers  who  use 
water  for  a  certain  acreage  before  some  arbitrarily  fixed  date 
are  considered  as  having  prior  rights;  those  who  cultivated 
other  lands  at  a  later  time  are  considered  as  having  secondary 
rights  to  these,  and  those  who  cultivated  lands  during  a  still 
later  period  have  third  rights,  and  so  on.  The  farmers  own- 
ing first  rights  are  entitled  to  the  use  of  water  originally  ap- 
propriated until  their  needs  are  satisfied,  those  owning  the 
second  rights  can  enjoy  the  use  of  the  surplus  water  after  the 
prior  rights  have  been  supplied,  while  those  owning  third 
rights  are  by  law  only  allowed  to  use  such  water  as  the  farmers 
having  first  or  secondary  rights  cannot  use  or  claim.  A  farmer 
having  prior  rights  may  also  have  secondary  rights,  and  even 
third  rights,  to  the  water  for  lands  not  covered  by  his  first 
rights,  and  thus  in  times  of  scarcity  he  does  not  lose  all  the 
water.  The  person,  however,  who  has  the  last  rights  cannot 
be  sure  of  success  in   times  of  scarcity,  and  unless  the  snow 

1  Stat.  1S92,  p.  91,  Sec.  2788-2788(1. 


§450-452]  UTAH.  631 

fall  in  the  mountains  is  heavy  during  the  winter  he  may  not 
dare  to  plant  in  the  spring,  knowing  that  he  cannot  secure 
water  later  in  the  season. 

§  451.  Siiiue. — Authorities  Discussed.— In  the  case  of  the 
Lehi  Irrigation  Company  vs.  Moyle.^  the  facts  were  that 
thirty-two  settlers  in  1851  constructed  a  ditch  and  diverted 
the  waters  of  a  certain  stream  for  the  purpose  of  irrigation. 
Ivater,  in  1873,  they  encouraged  a  number  of  new  settlers  to 
take  up  lands  in  the  vicinity,  and  permitted  them  to  enlarge 
the  capacity  of  the  ditch  under  the  tacit  understanding  that 
they  could  use  the  ditch  in  the  appropriation  of  water  suflB- 
cient  for  the  irrigation  of  their  lands.  And  in  an  action 
brought  by  the  first  parties  seeking  to  enjoin  the  later  comers 
from  the  use  of  the  water  the  Supreme  Court  of  the  Terri- 
tory held:  That  the  persons  who  built  an  irrigation  ditch 
upon  the  lands  of  the  United  States  become  the  owners 
thereof  and  of  the  right  to  use  the  water  first  appropriated 
thereby  so  long  as  they  use  the  same  for  irrigation  purposes 
and  to  the  extent  of  such  appropriation;  but  when  such  ditch 
is  enlarged  by  others,  the  original  owners  not  objecting,  and 
its  capacity  increased,  the  parties  so  enlarging  the  ditch  be- 
come owners  therein  and  in  the  water  appropriated  thereby 
without  any  conveyance  from  the  original  owners.  Thus 
holding  that  the  group  of  person.s  who  used  the  water  prior  to 
1873  as  having  the  primary  right  to  the  water  and  those  sub- 
sequent to  that  date  as  having  the  secondary  right;  but  the 
Court  held  that  by  their  actions  the  first  group  were  estopped 
from  setting  up  their  primary  rights  to  the  water. 

§  452.  Same.— Authorities  Contiuued.— Upon  this  sub- 
ject of  division  of  water  rights  the  Supreme  Court  of  Utah 
has  rendered  several  opinions.  In  the  case  of  Stowell  vs. 
Johnson,''^  the  facts  were  that  the  defendants  and  their  grantor 
had  appropriated  and  diverted  the  waters  of  certain  streams 
for  the  purpose  of  irrigation  during  the  season  that  it  was 
needed,  uninterruptedly,  from  the  year  1848  up  to  the  first 
day  of  November,  1882,  when    between    that    date    and    the 

I4  Utah,  327;  9  Pac.  Rep.  867.     -7  Utah,  215;  26  I'ac.  Rep.  290. 


632  UTAH.  [§  452 

first  day  of  April  following  the  plaintiffs,  by  means  of  pipes, 
diverted  all  the  water  of  one  stream  and  part  of  the  water  of 
others  for  the  purpose  of  supplying  the  inhabitants  of  Ogdeu 
City;  and  between  the  two  dates,  to  wit,  from  the  first  day 
of  November  during  each  and  every  3'ear  since  1882  until 
the  first  of  April  of  the  following  j^ear  up  to  the  year  1888, 
they  had  continued  to  divert  and  use  all  the  water  of 
the  several  streams  during  those  months  that  it  was  not 
needed  by  the  defendants  for  irrigation,  as  well  as  during  the 
irrigation  season,  the  portion  of  the  waters  of  the  streams  not 
needed  by  the  defendants  for  that  purpose.  The  Supreme 
Court  of  the  Territory,  by  Blackburn,  J.,  in  the  opinion  said: 
"It  is  not  found  that  the  defendants  need  on  their  lands  water 
for  irrigation  during  the  winter  season,  but  the  finding  is  that 
the  irrigating  season  is  from  April  until  November.  Nor  is 
it  found  that  the  defendants  need  during  the  winter  season 
more  water  than  one-half  of  the  waters  of  Strong's  Canyon 
Creek  and  all  of  the  waters  of  Canfield  Creek  below  the  Junc- 
tion; on  the  contrary  they  seem  to  have  got  along  with  that 
amount  of  water  from  1882  until  this  suit  was  commenced." 
Therefore  the  Court  held  that  the  defendant  had  a  primary 
right  to  the  waters  to  the  amount  only  that  thej^  actually 
needed  during  the  irrigation  period  and  the  amount  that  they 
actually  needed  for  domestic  purposes  during  the  winter,  and 
that  the  plaintiff  had  a  secondary  right  to  all  the  rest  of  the 
waters  not  so  used  both  during  the  irrigation  period  and 
during  the  winter. 

Also  in  the  case  of  Salina  Creek  Irrigation  Co.  vs.  Salina 
Stock  Co.,^  which  was  an  action  brought  claiming  the  waters 
of  a  certain  stream,  where  it  appeared  that  the  respondent 
and  its  grantors  had  appropriated  some  of  the  waters,  but 
afterwards  appellants  appropriated  and  used  a  certain  portion 
of  the  waters  of  the  stream,  and  afterwards  respondent  claimed 
the  whole  of  the  stream.  Held,  that  respondent  would  be 
confined  to  the  actual  appropriation  of  itself  and  grantors 
with  whom  it  connected  itself  by  the  deeds  of  such  grantors, 
being  actual  appropriators. 

I7  Utah,  456;  27  Pac.  Rep.  578. 


§453,454]  UTAH.  635 

III.    Irrigation  District  Law. 

§  453.  Or;^auization  of  Irrig;atioii  Districts. —  As  Utah 
was  among  the  first  to  adopt  the  active  practice,  in  the  arid 
West,  of  what  is  known  as  modern  irrigation,  it  was  also  the 
pioneer  State  or  Territory  in  that  region  to  enact  what  is 
known  as  an  Irrigation  District  Law.  On  January  20th, 
1865,  there  was  approved  an  act  for  the  formation  of  irrigation 
districts,  which  was  so  adapted  to  the  needs  and  necessities 
of  the  people  of  that  Territory  that  it  has  existed  almost 
intact,  with  very  few  amendments,  to  the  present  time.^ 

Section  2403  of  this  Act  provides:  That  upon  a  majorit}'  of 
the  citizens  of  anj-  county,  or  anj^  part  thereof,  representing 
to  the  County  Court  that  more  water  is  necessar}-,  and  that 
there  are  streams  unclaimed  or  unused  which  can  be  made  of 
value  to  the  interests  of  agriculture,  the  County  Court  may 
proceed  to  organize  a  count}^  or  a  part  thereof,  into  an  irri- 
gation district;  "and  thereafter  the  land-holders  of  such 
district  shall  be  equally  entitled  to  the  use  of  the  water  in,  or 
to  be  brought  into,  such  district,  according  to  their  acknowl- 
edged rights;  provided,  such  land-holders  pay  the  proportion 
of  such  expense  incurred  in  the  construction  and  keeping  in 
repair  of  the  necessary  canals,  flumes,  dams  or  ditches." 

§  454.  Officers  of  District — Duties  of  Trustees — Duty  of 
County  Court. — Sec.  2404  provides  that  the  citizens  of  an 
Irrigation  District,  when  so  organized,  may  in  mass  meeting 
proceed  to  the  formation  of  a  company,  by  electing  viva  voce 
not  less  than  three  nor  more  than  thirteen  trustees  and  a 
secretary  and  treasurer. 

The  duties  of  the  trustees  are  prescribed  to  be  to  locate  the 
proposed  canal  or  ditch,  determine  the  amount  and  quality  of 
the  land  to  be  benefited  thereby,  to  estimate  the  cost  for  the 
construction  of  all  works  and  to  estimate  the  amount  per  acre 
on  taxable  property  which  will  be  necessary  to  construct  the 
same. 

It  shall  then  be  the  duty  of  the  trustees  to  make  a  report  to 
the  County  Court  of  their  investigation,  also  to  call  a  meeting 

1  See  Compiled  Laws  of  Utah,  1888,  Sections  2403-2427, 


634  UTAH.  [^  454, 455 

of  the  holders  of  the  lands  to  be  benefited  by  the  proposed 
canal  or  ditch,  at  which  a  copy  of  said  report  shall  be  presented 
and  the  said  land  holders  shall  vote  "Yes"  or  "No"  upon  the 
following  questions: 

1.  Do  you  mutuall}'  agree  to  pay  per  acre  land  tax,  to 

construct  the  proposed  canal  or  ditch? 

2.  Do  you  approve  the  action  of  the  mass  meeting  in  the 
election  of  the  ofiicers? 

Notice  of  said  election  must  be  duly  given,  and  the  Act 
provides  rules  for  the  conduct  of  the  same.  And  if  upon 
counting  the  votes  it  shall  appear  that  two-thirds  of  the  votes 
polled  shall  have  been  answered  in  the  affirmative  then  the 
tax  so  agreed  upon  shall  become  a  law  in  the  said  irrigation 
district.  If  less  than  two-thirds  of  the  votes  polled  are 
answered  in  the  affirmative  then  all  proceedings  under  this 
Act  shall  be  null  and  of  no  effect. 

Sec.  241 1  provides  for  the  date  of  elections  and  notice  of 
the  same;  and  also  that:  "The  votes  at  said  election  shall  be 
by  acreage  and  not  per  capita,  The  right  to  use  the  water 
for  one  acre  of  land  shall  entitle  the  owner  to  one  vote.  The 
tax  voted  by  a  majority  vote  at  said  election  shall  be  a  lien  on 
all  water  rights  until  paid,  from  the  day  of  assessing  the  same, 
but  not  upon  the  land."^ 

§455.  Power  of  Trustees — Lakes  Jiml  Ponds. — Sec.  2413 
provides  that  the  trustees  shall  have  power  to  sue  and  be 
sued,  and  to  have  and  to  hold  all  such  real  estate  and  personal 
property-  as  will  be  necessary  to  construct  the  contemplated 
ditch  or  canal. 

Section  2416.  '  'Where  lakes  or  ponds  in  natural  basins  have 
outlets,  or  where  such  can  be  made  by  dams  across  hollows, 
such  lakes  or  ponds  may  be  used  as  reservoirs  to  store  water 
for  lands  lying  on  lower  levels,  and  the  people  of  any  irriga- 
tion district  may,  under  the  provisions  of  this  Act,  construct 
such  artificial  or  use  such  natural  basins  for  irrigation  pur- 
poses; provided  the  w^aters  of  such  lakes  or  ponds  are  in  no 
case  to  be  raised  by  dams  or  otherwise  so  as  to  interfere  with 
or  damage  settlers  upon  the  margin  thereof." 

1  As  amended  by  .-Vet  approved  March  lo,  1892.     .See  vStat.  1892,  p.  38. 


§456.457]  UTAH.  635 

§  456.  Taxes.— Coudemimtioii  of  Land  for  Right  of  Way. 

The  Act  provides  that  in  order  to  keep  all  works  of  the  dis- 
trict in  repair  a  tax  may  be  levied  upon  the  lands  benefited, 
the  land-holders  in  the  district  to  vote  upon  the  same,  in  the 
same  manner  as  provided  by  the  Act  for  elections  upon 
other  questions. 

Section  2418.  "All  property  or  money  belonging  to  any 
irrigation  district,  in  the  hands  of  the  trustees  to  be  ex- 
pended by  them  under  the  provisions  of  this  Act,  is  hereby 
exempted  from  all  city,  county,  and  territorial  taxes." 

The  Act  also  provides,  That  the  trustees  shall  have  power 
to  purchase  lands  for  ditch  or  canal  purposes,  and  proceedings 
are  prescribed  in  case  the  land-owners  are  absent,  or  cannot 
agree  with  the  trustees  as  to  the  price  to  be  paid  for  the  land, 
that  the  land  may  be  condemned  for  the  purpose.  Penalties 
are  prescribed  for  the  injuring  of  property  of  the  district  and 
what  damages  the  district  shall  be  liable  for. 

§  457.  Riparian  Rights  in  the  Territory.— The  Territory 
of  Utah,  as  can  be  seen  from  the  abstract  of  its  laws,  has 
developed  a  distinct  policy  of  its  own  for  the  regulation  and 
control  of  the  right  to  the  water  of  streams  and  lakes  within 
its  borders,  which  has  practically  shaped  and  moulded  so 
many  of  the  affairs  of  the  Territory.  The  common  law  doc- 
trine concerning  property  in  the  waters  of  streams  and 
riparian  rights  are  completely  abrogated.  Upon  this  subject, 
in  the  recent  case  of  Stowell  vs.  Johnson, 1  the  Supreme  Court 
of  that  Territory,  speaking  through  Blackburn,  J.,  said: 
"  Riparian  rights  have  never  been  recognized  in  this  Terri- 
tory, or  in  any  State  or  Territory  where  irrigation  is  neces- 
sary, for  the  appropriation  of  water  for  the  purpose  of  irriga- 
tion is  entirely  and  unavoidably  in  conflict  with  the  common 
law  doctrine  of  riparian  proprietorship.  If  that  had  been 
recognized  and  applied  in  this  Territory  it  would  still  be  a 
desert;  for  a  man  owning  ten  acres  of  land  on  a  stream  of 
water  capable  of  irrigating  a  thousand  acres  of  land  or  more 
near  its  mouth  could  prevent  the  settlement  of  all  the  land 

1  7  Utah,  21,5;    26  Pac.  Rep.  290. 


636  UTAH.  [§  457 

above  him.  For  at  common  law  the  riparian  proprietor  is 
entitled  to  have  the  water  flow  in  quantity  and  quality  past 
his  land  as  it  was  wont  to  do  when  he  acquired  title  thereto, 
and  this  right  is  utterly  irreconcilable  with  the  use  of  water 
for  irrigation.  The  Legislature  of  this  Territory  has  always 
ignored  this  claim  of  riparian  proprietors,  and  the  practice 
and  usages  of  the  inhabitants  have  never  considered  it  ap- 
plicable, and  have  never  regarded  it." 


CHAPTER  XVII. 
North  Dakota. 


I.  SUBJECT     TREATED     IX     GEN- 

ERAL. 
Section . 

458.  Particular  features  of  State. 

459.  Irrigation  in  the  State. 

II.  GENERAI.  STATUTORY  ENACT- 
MENTS OF  THE  TERRITORY  OF 
DAKOTA. 

460.  Water  rights. 

461.  Abandonment — Manner  of 

locating  Water  rights. 

462.  Organization  of    Ditch  Com- 

panies. 


III.  GENERAL   STATUTORY   LAWS 

OF   THE   STATE. 
Section. 

463.  An  Act  to  raise  tax  for  irri- 

gation purposes. 

464.  An   Act  to    encourage     con- 

struction of  artesian  wells. 

IV.  IRRIGATION    DISTRICT    LAW. 

465.  Organization     of      Irrigation 

Districts. 

466.  Power  of  the  Board — Assess- 

ments— Condemnation. 

467.  Riparian   rights    in    North 

Dakota. 


I.  Subject  Treated  in  General. 

§458.  Particular  Features  of  State.— The  term  "  sub- 
humid"  is  generally  understood  as  applying  to  a  portion  of 
the  great  plains  lying  to  the  east  of  the  arid  region.  As  a 
matter  of  course  there  is  on  the  western  portion  of  the  arid 
region  a  strip  of  country  which  might  be  designated  as  sub- 
humid.  For  the  purposes  of  this  discussion  the  sub-humid 
region  is,  however,  considered  as  extending  in  a  broad  belt 
across  the  country  from  north  to  south,  including  portions  of 
North  Dakota,  South  Dakota,  Nebraska,  Kansas  and  Texas. 
Statistics  show  in  a  general  way  an  increase  from  north  to 
south  both  in  the  number  of  irrigators  and  in  the  acreage 
irrigated.  This  is  due  largely  to  the  fact  that  conditions  of 
summer  aridity  increase  with  lower  latitudes,  and  also  in  part 
to  the  greater  density  of  population  and  the  more  easily  avail- 
able water  supply  towards  the  south. 


638  NORTH   DAKOTA.  [§458-460 

The  State  of  North  Dakota  is  in  the  "Great  Plains"  region 
of  the  United  States,  and  the  most  northerly  of  the  five 
States  which  are  included  within  what  is  known  in  irrigation 
parlance  as  the  "Sub-humid  Region."  It  will  be  seen  by  a 
glance  at  the  map  that  the  State  has  a  large  number  of  quite 
important  streams  and  lakes,  especially  in  the  western  and 
more  arid  region,  which  make  the  possibilities  for  an  extensive 
system  of  irrigation  good. 

H5^-  Irrij^atioii  in  the  State.— Dependence  upon  the 
annual  rainfall  in  the  State  has  held  back  the  progress  of 
irrigation  within  the  State  of  North  Dakota,  although  this 
dependency  has  often  been  doomed  to  disappointment.  But 
since  becoming  a  State  the  practice  of  the  art  of  irrigation 
has  advanced  considerably,  and  is  bound  to  advance  in  the 
future  as  an  adjunct  to  the  rainfall.  Besides  the  natural 
streams  and  lakes  flowing  wells  have  been  found  in  the 
eastern  end  of  the  State,  in  the  valley  of  the  St.  James  River 
and  that  of  the  Red  River  of  the  North,  which  source  of 
supply  has  been  utilized  for  this  purpose. 

At  present  the  State  of  North  Dakota  can  be  classed  among 
those  States  having  the  district  law,  the  Legislature  in  1891 
having  passed  a  law  for  simple  means  of  District  organization. 

II.  Oeiieral  Statutory  Euattmeiits  of   the  Territory  of 

Dakota. 

§  4(>(>.  Water  Rights.— In  1881  the  legislature  of  the 
Territory  of  Dakota  passed  an  Act  upon  the  subject  of  water 
rights,  of  which  the  following  is  the  substance:^ 

Sec.  2029  is  as  follows:  "Any  person  or  persons,  corpora- 
tion or  company,  who  may  have  or  hold  a  title  or  possessory 
right  or  title  to  any  mineral  or  agricultural  land  within  the 
limits  of  this  Territory  shall  be  entitled  to  the  usual  enjoy- 
ment of  the  waters  of  streams  or  creeks  in  said  Territory,  for 
mining,  milling,  agricultural  or  domestic  purposes;  provided, 
that  the  right  to  such  use  shall  not  interfere  with  any  prior 

1  See  Compiled  Laws  of  Dakota,  18S7,  Sec.  2029-2038. 


^460-402]  NORTH    DAKOTA.  639 

right  or  claim  to  such  waters  when  the  huv  has  been  complied 
with  in  doing  the  necessary  work." 

The  Act  provides,  without  authorizing  any  condemnation 
proceedings  or  paj-ment  to  the  owners  of  lands  through  which 
a  ditch  is  sought  to  be  run,  that  any  ditch-owner  shall  have 
the  right-of-way  through  and  over  any  tract  or  piece  of  land 
for  the  purpose  of  conducting  and  conveying  the  water;  but 
such  right  to  dig  and  construct  ditches  is  limited  to  only  so 
much  as  is  necessar}"^  for  the  purposes  required.  But  the  Act 
provides  that  an}^  ditch-owner  damaging  or  injuring  the  land 
of  another,  b}^  reason  of  cutting  or  digging  ditches  through 
the  same,  the  party  so  committing  the  same  shall  be  liable  to 
the  party  injured  for  the  actual  damage  occasioned  thereby. 

§  461.  AbaiHloiinieut. — Manuer  of  Locating  Waler- 
liights. — Sec.  2037  provides  that  any  person  or  company  ap- 
propriating water  shall  construct  at  least  twenty  feet  of  the 
ditch  or  flume  within  thirty  days  of  the  first  act  of  appro- 
priation, and  turn  the  water  therein  from  the  channel  of  the 
creek  or  stream;  and  construct  at  least  twenty  rods 
of  said  ditch,  if  needed,  and  turn  the  water  therein  within 
six  months  from  the  date  of  the  appropriation;  and  within 
tw^enty  days  from  the  date  of  the  location  the  locator  must  file 
a  location  certificate  Vv^ith  the  Register  of  Deeds  in  the  proper 
county;  a  copy  of  such  certificate  must  be  posted  at  or  near 
the  head  of  such  ditch,  and  must  contain  the  name  of  locator, 
the  date  of  location,  number  of  inches  claimed  and  the  pur- 
pose of  the  appropriation. 

Sec.  2038.  "  On  failure  to  commence  the  construction  of 
such  ditch  or  flume  for  sixty  days  after  location,  and  prose- 
cute such  ditch,  canal  or  flume  to  its  final  completion  with- 
out unnecessary  delay,  such  appropriation  shall  be  deemed 
abandoned." 

§  462.  Organization  of  IMteli  Conipanios. — In  addition  to 
the  above  the  Territorial  laws  provide  for  the  organization 
of  ditch  companies  for  the  purpose  of  irrigation,  which  law 
provides  that  the  articles  of  incorporation  must  specify  "  the 
stream  or  streams  from  which   the  water  is  to   be  taken;  the 


640  NORTH    DAKOTA.  [§462,463 

point  or  place  on  the  stream  at  or  near  which  the  water  is  to 
be  taken  out;  the  line  of  said  ditch,  as  near  as  may  be,  and 
the  use  to  which  the  said  water  is  intended  to  be  applied."  ^ 

The  law  provides  for  a  right-of-way  over  the  line  named  in 
the  articles.  But  no  water  shall  be  diverted  to  the  detriment 
of  those  who  have  a  priority  of  right  to  the  same. 

Sec.  31 18  provides:  "  That  every  ditch  corporation  must 
furnish  water  to  the  class  of  persons  using  water  in  the  way 
and  for  the  purpose  for  which  the  articles  of  incorporation 
declare  the  water  obtained  by  the  corporation  is  to  be  used, 
whether  miners,  manufacturers,  millmen  or  farmers,  whenever 
they  shall  have  water  in  their  ditch  unsold,  and  must  at  all 
times  give  the  preference  to  the  use  of  water  in  such  ditch  to 
the  class  of  persons  so  named  in  the  articles." 

Every  corporation  formed  under  the  Act  must  within  ninety 
days  commence  the  construction  of  its  works,  and  must 
prosecute  the  same  with  due  diligence  until  completed;  and 
the  time  of  completion  of  its  works  shall  not  extend  beyond 
a  period  of  four  years. - 

III.  Ueiieral  Statutory  Laws  of  the  State. 

§  403.  All  Act  to  Raise  Tax  for  Irrigation  Purposes.— 

On  February  11,  i8go,  there  was  approved  an  Act  which  had 
been  passed  by  the  Legislature  of  the  State  of  North  Dakota, 
entitled,  "An  Act  to  allow  organized  town.ships  to  raise  a  tax 
for  irrigation  purposes,"  ^ 

Section  i.  "Whenever  ten  legal  voters  of  any  organized 
township  petition  the  Town  Board  fifteen  days  previous  to  an 
annual  town  meeting  to  submit  the  subject  of  irrigation,  by 
building  dams  to  create  ponds  or  reservoirs  on  any  of  the 
creeks  or  coulies  in  said  township,  it  shall  be  the  duty  of  said 
Town  Board  to  submit  the  question  to  the  voters  at  the  next 
annual  town  meeting,  and  the  Town  Clerk  shall  cause  three 
notices  to  be  posted  specifying  the  place  and  nature  of  said 
improvements." 

The    Act  provides  that   whenever  two-thirds  of  the  legal 

1  Compiled  Laws  of  Dakota,  18S7,  ^  As  amended  in  1879. 

Sec.  3116-3125.  3  See  Stat.  1890,  p.  149- 


§463-465]  NORTH    DAKOTA.  641 

voters  of  any  town  shall  agree  at  their  town  meeting  that  the 
water  supply  should  be  increased  for  the  purpose  of  irrigation 
it  shall  be  lawful  that  a  tax  be  levied  for  the  purpose  of  con- 
structing the  works  necessary  by  and  under  the  directions  of 
the  Board  of  Supervisors  of  said  town;  provided,  such  im- 
provements shall  be  wholly  in  said  town.  And^  the  Act 
authorizes  a  tax  to  be  levied  which  shall  not  exceed  two 
mills  on  the  dollar  upon  the  assessed  valuation  of  the  prop- 
erty. 

§464.  An  Act  to  Encourage  Construction  of  Artesian 
Wells — On  March  6,  1891,  there  was  approved  "An  Act  to 
encourage  the  construction  of  artesian  wells  and  defining  the 
rights  and  liabilities  of  persons,  corporations  and  companies 
constructing  said  wells  for  the  purpose  of  power  and  for  the 
purpose  of  irrigating  agricultural  lands."  ^ 

Section  i  provides:  "  It  shall  be  lawful  for  any  person  or 
persons,  or  association  of  persons,  to  construct  artesian  wells 
upon  any  land  owned  or  leased  by  them  for  the  purpose  of 
power  or  the  irrigation  of  lands  for  agricultural  purposes,  and 
for  any  and  all  purposes  for  which  said  water  from  such  wells 
may  be  utilized." 

The  Act  also  provides  for  the  disposition  of  surplus  water 
from  any  artesian  well;  for  a  hearing  to  determine  whether 
any  lands  over  which  such  water  is  proposed  to  be  conducted 
will  be  damaged;  determination  of  damages  if  any;  appeals 
from  the  decisions  of  the  Court;  that  water-ways  may  be  per- 
mitted on  railway  rights-of-way;  penalty  for  interference 
with  artificial  water-courses,  and  repair  of  ditches. 

IV.  Irrigation  District  Law. 

§465  Organization  of  Irrigation  Districts.— On  March  7^ 
1889,  there  was  approved  "  An  Act  to  promote  irrigation,"  ^ 
section  i  of  which  Act  provides:  "  Whenever  the  owners  of 
any  body  of  lands  susceptible  of  one  mode  of  irrigation  desire 
to  irrigate  the  same  they  may  present  to  the  Board  of  County 
Commissioners   of  the  county  in  which  the  lands  or  a  greater 

1  See  Stat.  1891,  \).  107.     -See  Stat,  1891,  p.  213. 


642  NORTH    DAKOTA.  [§465,466 

portion  thereof  are  situated,  at  a  regular  or  special  meeting 
of  the  Board,  a  petition  setting  forth  that  the}^  desire  to 
adopt  measures  to  irrigate  the  same,  the  description  of  the 
lands  by  legal  subdivisions,  the  number  of  acres  in  the  whole 
district  and  the  number  of  acres  in  each  tract,  with  the  names 
of  the  owners  thereof,  and  the  names  of  three  persons  who 
may  desire  to  ser\'e  as  trustees  for  the  first  three  months,  and 
the  name  desired  for  the  proposed  irrigation  district." 

The  Act  provides  for  the  publication  of  the  petition;  the 
proceedings  when  the  district  proposed  is  partly  in  different 
counties;  the  hearing  of  the  petition  by  the  County  Commis- 
sioners and  their  approval  thereof,  and  the  recording  of  the 
same.  Also  that  the  petitioners  may  make  such  by-laws  as 
they  may  deem  necessary  for  the  control  and  management  of 
the  district,  which  by-laws  must  also  be  recorded. 

§466.    Power  of  tlie  Board.— Assessments.— ('oiKleiiiiia- 

tioii.— Section  8  provides:  "The  Board  thus  formed  shall 
have  power  to  elect  one  of  their  number  president  thereof, 
and  to  employ  engineers  to  survey,  plan,  locate,  and  estimate 
the  cost  of  the  works  necessary  for  the  irrigation,  including 
dams,  canal  sluices,  water  gates,  embankments  and  material 
for  construction,  and  to  construct,  maintain  and  keep  in  repair 
all  works  necessary  to  the  object  in  view." 

The  Board  must  report  all  of  its  transactions  to  the  County 
Commissioners.  Also,  the  Board  must  appoint  three  com- 
missioners, and  must  view  and  assess  on  the  lands  of  the  dis- 
trict a  charge  proportionate  to  the  whole  expense  and  to  the 
benefits  which  will  result  from  such  works.  Provisions  are 
made  for  the  collection  of  the  assessment,  and  that  from  and 
after  filing  of  the  list  or  certified  copy  thereof  the  charges 
assessed  upon  any  tract  of  land  within  the  county  constitutes 
a  lien  thereon. 

Section  23.     The  trustees  may  acquire  by  condemnation: 

"First,  The  right  to  use  of  any  running  water  not  already 
used  for  culinary  or  domestic  purposes  for  irrigating,  milling 
or  mining  purposes. 

"Second,  The  right-of-way  for  canals,  drains  and  embank- 
ments and  other  works  necessary,  and  may  take  materials  for 


§466,467]  NORTH    DAKOTA.  643 

the  construction,  maintenance  and  repair  thereof  from  lands 
within  the  limits  of  the  district."  ^ 

§  467.  Riparian  Rights  in  North  Dakota. — The  common 
law  riparian  rights  are  recognized  in  the  State  of  North 
Dakota.  The  statute  provides:  Water  running  in  a  definite 
stream  formed  by  nature  over  or  under  the  surface  may  be 
used  bj'  the  owners  of  the  land  as  long  as  it  remains  there; 
but  he  may  not  prevent  the  natural  flow  of  the  stream  or  the 
natural  spring  from  which  it  commences  its  definite  course, 
nor  pursue  nor  pollute  the  same.^ 

And  in  the  case  of  Sturr  vs.  Beck,  decided  by  the  Supreme 
Court  of  the  United  States,  it  was  held  under  the  statutes  of 
that  State  that  a  riparian  owner  of  land  bordering  upon  a 
running  stream  has  a  right  to  the  flow  of  its  waters  as  a 
natural  incident  to  his  estate,  and  they  cannot  be  lawfully 
diverted  against  his  consent.^ 

1  See  also  Act  approved  March       prescribing  the  duties  thereof." — 
7,  1891,  entitled  "An  Act  creating       Stat.  1891,  p.  216. 
the  office  of  State  Superintendent  2  Levisee's  Dakota  Codes,  2d  ed. 

of   Irrigation   and   Forestry,    and       781. 

3  133  U.  S.  541- 


CHAPTER  XVIII. 
South  Dakotii. 


I.  SUBJECT  TREATKD  IN  GENERAL. 
Section.— 

46S.  Particular  feature — Irrigation 
in  State. 

II.    GENERAL   STATUTORY 
ENACTMENTS. 

469.  Territorial  irrigation  laws. 

470.  Corporations  for  sinking  ar- 

tesian wells. 

III.    IRRIGATION   DISTRICT  LAW. 

471.  An    Act    providing    for    the 

sinking  of  artesian  wells  for 
public  purposes — Organiza- 
tion of  Districts. 


Section. — 

472.  Same-Voting  of  bonds — Con- 


struction of  Works. 
Conveyance  of  Water — Title 

to  property — Lien  for  water 

rent. 
Taxes — Reservoirs. 
Use  of  water. 

476.  Water  must  not  be  wasted. 

477.  Riparian      rights     in     vSouth 

Dakota. 


473- 


474 
475 


I.  Subject  Treated  in  General. 

§  468.  Tarticular    Features.— Irrif^ation   in   State.— In 

general  what  has  been  said  about  the  particular  features  of 
North  Dakota  and  of  the  sub-humid  region^  will  also  apply 
to  the  State  of  South  Dakota.  The  supply  of  water  in  rivers, 
streams  and  lakes  is  large,  but  as  yet  it  is  utilized  very  little 
for  the  purpose  of  irrigation  as  compared  with  its  possibilities. 
The  art  of  irrigation  is  practiced  more  as  a  valuable  adjunct 
to  the  rainfall  of  the  State  than  as  an  absolute  necessity.  The 
principal  feature  of  the  State  is  the  w^onderful  artesian  well 
basins,  one  of  the  greatest  being  the  James  or  Dakota  River 
Vallev  Basin,  which   is  know-n  to  extend  from  twenty  miles 


^  See  Ante  Sections.  458,  459. 


§468-470]  SOUTH  Dakota.  645 

east  of  the  James  River  to  the  Missouri  River  on  the  west, 
and  possibly  further.  Water  is  obtained  in  abundance  wher- 
ever the  water-bearing  strata  have  been  tapped.  The  depth 
of  the  water-bearing  strata  varies,  being  at  the  south  end  of 
the  basin  from  thirty  to  six  hundred  feet  below  the  surface, 
and  about  fifteen  hundred  feet  near  Devil's  Lake.  This  is 
partly  due  to  the  drift  in  the  strata  and  partly  to  the  differ- 
ence in  elevation. 

The  flow  of  some  of  these  wells  is  enormous  when  the  size 
of  the  pipe  or  casing  is  taken  into  consideration.  The  Woon- 
socket  well,  near  Huron,  is  noted  because  it  throws  a  four- 
inch  stream  of  water  seventy-one  feet  high.  The  actual  flow 
of  the  well  is  two  thousand  seven  hundred  feet  per  minute  or 
six  cubic  feet  per  second. 

II.  Oeneral  Statutory  Enactments. 

§  4G1).  Territorial  Irrigation  Laws.— The  laws  adopted 
by  the  Territory  before  its  division  into  North  and  South 
Dakota  was  adopted  by  South  Dakota  when  it  became  a 
State.  An  abstract  of  these  laws  has  been  given  in  the  chap- 
ter devoted  to  North  Dakota.^ 

§  470.    Corporations    for   Sinking  Artesian  Wells.— On 

March  8,  1890,  there  was  approved  an  Act  to  encourage  the 
construction  of  artesian  wells. ^ 

Section  i  of  said  Act  provides:  "It  shall  be  lawful  for  any 
person  or  persons,  corporation  or  corporations,  company  or 
companies  to  construct  artesian  wells  upon  any  lands  owned 
or  leased  by  such  person,  company,  or  corporation,  for  the 
purpose  of  power  and  the  irrigation  of  land  for  agricultural 
purposes,  and  for  any  and  all  purposes  for  which  said  water 
from  said  well  may  be  utilized.'' 

The  provisions  of  this  Act  are  somewhat  similar  to  the  Act 
of  March  6,  1891,  of  North  Dakota,  an  abstract  of  which  has 
been  given  in  the  previous  section.-' 

1  See    ante     Sections    460-462.  2  See  Stat.  1890,  p.  245. 

Comp.  Laws  of  Dakota,  1887,  Sees.  3See  ante  Section  464,  Laws  of 

2029-2038.     Also  vSecs.  31 16-3125.  North  Dakota  1891,  p.  107. 


646  SOUTH  DAKOTA.  [§  470, 471 

The  Act  provides  that  a  right  of  way  may  be  obtained  for 
ditch  purposes,  but  that  improved  lands  shall  not  be  crossed 
by  more  than  one  ditch  where  one  can  be  made  to  serve  the 
purpose.  It  also  provides  for  disposing  of  the  surplus  water; 
penalties  are  prescribed  for  interfering  with  or  injuring  an}^ 
of  the  works;  the  owners  must  keep  all  ditches  and  water- 
ways in  good  repair;  and  when  the  ditch  crosses  the  lands  of 
a  person  such  person  may  apply  to  the  owner  of  the  ditch  for 
a  right  to  use  the  surplus  water  flowing  therein  to  irrigate 
his  lands,  and  such  owner  shall  allow  him  to  do  so  on  pay- 
ment of  a  just  rental.  Water  rates  are  to  be  fixed  by  the 
Count}^  Commissioners. 

111.     Irrigation  District  Law. 

§  471.  All  Act  Providing  for  the  Sinliing  of  Artesian  Wells 
for  Pnblic  Purposes. — Organization  of  Districts. — On  March 
9,  1891,  there  was  approved  an  Act  entitled  "An  Act  author- 
izing civil  townships  to  sink  artesian  wells  for  public  purposes 
and  to  issue  bonds  therefor. ' '  ^ 

Section  i.  "That  the  water  of  the  artesian  basin  underlying 
or  being  in  the  shale  formation,  in  all  townships  in  the  State 
of  South  Dakota  which  shall  petition  for  and  sink  artesian 
wells  as  hereinafter  provided,  and  not  heretofore  appropri- 
ated, is  hereby  declared  to  be  the  property  of  the  public,  and 
is  dedicated  to  the  use  of  the  people  of  the  State  of  South 
Dakota  subject  to  appropriation  as  hereinafter  provided." 

Sec.  2  provides:  That  whenever  twentj^  or  more  persons, 
each  owning  not  less  than  eighty  acres  of  land,  in  any  town- 
ship of  the  State,  shall  make  an  application  in  writing  to  the 
State  Engineer  of  Irrigation,  requesting  him  to  locate  within 
said  township  artesian  wells,  not  to  exceed  nine  in  number 
if  said  wells  shall  be  six  inches  in  diameter  and  not  to  ex- 
ceed sixteen  in  number,  if  said  wells  shall  be  four  and  one- 
half  inches  in  diameter,  for  the  purpose  of  supplying  the 
public  with  water,  it  shall  be  the  duty  of  said  engineer  to 
locate  in   said  township  the  number  of  wells  mentioned  in 

1  vStat.  1891,  p.  196. 


§471-473]  SOUTH   DAKOTA.  647 

the  application,  at  such  places  as  in  his  judgment  may  best 
subserve  the  interest  of  all  the  resident  landowners  of  the 
township. 

The  State  Engineer  must  file  the  said  application,  with  his 
report  locating  said  wells,  in  the  office  of  the  Register  of 
Deeds  for  the  co\inty.  His  report  must  contain  the  number 
of  wells,  the  size  of  each  well,  and  the  exact  location  of  each, 
together  wdth  a  full  description  thereof;  and  notice  to  the 
Board  of  Supervisors  of  filing  said  application  and  report 
must  be  made  by  the  Register  of  Deeds. 

§  472.  Same.  -Toting  of  Bonds.— Construction  of  Works. 
The  chairman  of  the  Board  of  Supervisors  shall  within  five 
days  after  receipt  of  said  notice  give  notice  to  the  electors  of 
said  township  of  an  election  for  the  purpose  of  voting  upon 
the  question  of  issuing  bonds  for  the  purpose  of  sinking  the 
artesian  wells;  rules  for  the  conduct  of  said  election  are  then 
provided.  "The  ballots  used  in  said  election  shall  be  printed 
or  written   in  substantially  the   following   form:    'Shall  the 

township  of issue  bonds  for  the  sinking  of  artesian 

wells  at  the  places  mentioned  in  the  notice  of  this  election? 
Yes  or  No.'  "  If  the  election  is  carried  in  favor  of  issuing 
the  bonds  the  town  clerk  shall  deposit  in  the  office  of  the 
Register  of  Deeds  of  the  county  a  duplicate  of  the  canvass  of 
votes  for  the  same. 

The  Act  provides  that  the  Board  of  Supervisors  shall  ad- 
vertise for  bids  for  the  construction  of  the  wells  and  publish 
the  fact  that  no  money  will  be  paid  nor  liability  incurred  until 
the  said  w^ell  or  wells  shall  be  completed  and  accepted  by  the 
State  Engineer  of  Irrigation.  Every  person  whose  bid  is 
accepted  must  within  twenty  days  thereafter  commence  the 
actual  work  of  sinking  the  same  with  all  convenient  speed 
until  completion.  The  State  Engineer  upon  receiving  the 
notice  of  the  completion  of  any  well  must  examine  and  if 
satisfactory  accept  the  same. 

§473.  Conveyance  of  Water-Title  to  Property.— Lien  for 
Water  Rent— The  Supervisors  shall  convey  the  water  from 

wells  thus  constructed  to  the  highest  point  of  land  upon  the 
tract  to  be  irrigated . 


648  SOUTH  DAKOTA.  [§473-475 

Before  anj^  contract  for  the  sinking  of  an  artesian  well  shall 
be  let  the  person  upon  whose  lands  the  well  is  located  shall 
make  to  the  township  a  deed  of  one  acre  of  land  upon  which 
the  well  is  located,  with  a  right  of  way  to  the  well.  Civil 
townships  are  empowered  to  receive  and  liojd  real  estate  for 
the  purposes  mentioned. 

Rules  are  provided  for  making  application  for  the  use  of 
water;  contracts  for  its  use,  filing  application  and  contract 
with  the  Register  of  Deeds,  which  shall  be  recorded. 

Sec.  21  provides  that  the  township  shall  have  a  lien  upon 
land  for  the  amount  of  water  rent  remaining  unpaid,  and 
may  forclose  the  lien  whenever  said  water  rents  shall  remain 
unpaid  for  thirty  days  after  the  time  mentioned  jn  the  con- 
tract for  payment. 

§  474.  Taxes. — Bonds. — lleservoirs. — In  case  there  shall 
not  be  sufficient  money  from  water  rents  to  pay  the  amount 
of  interest  on  the  bonds  then  it  is  the  duty  of  the  officers  of 
said  township  to  levy  and  collect  a  tax  for  that  purpose;  as 
well  as  it  is  their  duty  to  levy  a  tax  to  provide  for  a  sinking 
fund  to  pay  the  principle  of  the  bonds  when  due. 

Provisions  are  then  made  for  the  redemption  of  the  bonds, 
the  form  of  the  bonds,  and  that  the  bonds  shall  be  a  lien 
upon  the  civil  township. 

Provisions  are  also  made  for  the  sinking  of  artesian  wells 
for  the  purpose  of  filling  lake-beds,  streams  or  artificial  reser- 
voirs.    Also  when  the  number  of  wells  may  exceed  sixteen. 

§475.  Use  of  Wjiter.— Sec.  34  provides;  "That  the  State 
Engineer  shall  prescribe  rules  and  regulations  for  the  distri- 
bution and  use  of  water  from  public  wells,  not  in  conflict 
with  law,  subject  to  the  approval  of  the  township  Board  of 
Supervisors." 

Sec.  36  provides  that  the  water  derived  from  artesian  wells 
pursuant  to  the  Act  shall  be  applied  to  the  following  purposes 
and  in  the  following  order: 

"  First.  For  domestic  purposes,  which  is  hereby  defined  to 
mean  for  household  use,  for  the  supply  of  domestic  animals 
kept  with  and  for  the  use  of  the  household   farm,  and  the 


§475,476]  SOUTH  Dakota.  649 

watering  and  sustaining  of  trees,  grass,  flowers  and  shrubbery 
about  the  house  of  the  consumer,  in  an  area  not  exceeding 
one-half  acre  of  land. 

"Second.  All  the  waters  from  said  wells  not  used  for 
domestic  purposes  shall  be  applied  to  the  purposes  of  irriga- 
tion." It  is  provided  that  whenever  there  is  a  surplus  of 
water  the  Board  of  Trustees  is  authorized  to  lease  the  power 
for  manufacturing  purposes,  as  in  their  judgment  will  best 
subserve  the  interests  of  the  people. 

The  Act  provides  that  all  wells  must  be  enclosed  by  a  good 
and  substantial  building. 

Sec.  42.  "  Any  person,  association  or  corporation  owning 
land  shall  have  the  right  to  sink  or  bore  an  artesian  well  or 
wells  on  his,  their  or  its  lands,  for  the  purpose  of  procuring 
water  for  domestic  use,  for  irrigation  or  for  manufacturing 
purposes;  but  in  wells  hereafter  constructed  no  more  water 
shall  be  appropriated  by  such  person,  association  or  corpora- 
tion than  is  needed  for  said  purposes  when  such  additional 
use  of  water  interferes  with  the  flow  of  wells  on  the  adjacent 
lands." 

§476.  Water  Must  Not  lie  Wasted.— The  Act  provides 
that  no  person  controlling  an  artesian  well  shall  permit  the 
waters  thereof  to  flow  to  waste. 

Also,  whenever  any  township  in  which  an  incorporated 
village  is  or  shall  be  located  is  desirous  of  sinking  an  artesian 
well  it  shall  be  lawful  for  the  village  to  join  with  the  town- 
ship in  voting  upon  the  question  of  bonds;  and  the  electors 
of  the  entire  township,  including  the  village,  shall  vote  upon 
the  question  in  the  same  manner  as  if  there  was  no  separate 
incorporated  village,  and  the  bonds  so  issued  shall  be  a  lien 
upon  all  taxable  property  of  the  township  and  village 
alike.' 

1  On    March  6,    1893,    there  was  nected  therewith."  See  Stat.  1893, 

approved   "An  Act  to  provide  for  p.  182. 

the  sinking  of  artesian    wells  and  The    Act   provides    that    when- 

for  the  levying  of  a  tax  to  pay  the  ever     fifty      freeholders    of     any 

expenses   thereof;   and    to    define  county  of  the  State,  of  whom  fif- 

the  duties  of  certain   officers  con-  teen  shall   be  each    the    owner  of 


650 


SOUTH    DAKOTA. 


[§477 


§477.  Riparian  Riglits  in  Sontli  Dakota. —  Riparian 
rights  as  known  under  the  common  law  are  also  recognized 
and  protected  in  the  State  of  South  Dakota,^ 


not  less  than  eighty  acres  of 
land,  located  on  any  natural 
water-course,  on  which  an  artesian 
well  is  sought  to  be  located,  shall 
petition  the  engineer  of  irrigation 
for  the  location  and  establishment 
of  an  artesian  well  it  shall  be  the 
duty  of  the  engineer  to  personally 
investigate  for  the  purpose  of  de- 
termining the  practicability  of 
such  a  well.  The  engineer  must 
then  make  his  report  in  writing 
and  file  the  same  with  the  County 
Auditor,  together  with  an  esti- 
mate of  the  total  cost  for  putting 
down  such  well.  The  Act  pro- 
vides for  "a  Board  of  Viewers" 
to  be  appointed  by  the  County 
Auditor,  who  must  personally  ex- 
amine the  location  of  such  well 
and  file  their  report  with  the 
County  Auditor;  it  is  then  the 
duty  of  the  County  Auditor  to  fix 
a  day  for  the  hearing  and  con- 
sideration of  such  report  by  the 
Board  of  County  Commissioners 
of  that  county,  and  he  shall  call 
such  commissioners  together  for 
that  purpose.  Appeal  may  be 
taken  from  the  decision  of  the 
board  by  any  person  aggrieved 
thereb}'.  Special  election  is  pro- 
vided for  by  the  Act  on  the  ques- 
tion of  issuing  the  warrants  of 
said  county  to  the  amount  of  esti- 
mated costs  and  values  of  con- 
structing and  putting  down  the 
well.  If  a  majority  of  the  votes 
cast  at  the  election  be  in  favor  of 


issuing  warrants  the  County  Com- 
missioners shall  proceed  to  con- 
struct such  artesian  well.  Power 
is  given  the  County  Commissioners 
to  acquire  the  site  of  the  well,  and 
the  letting  of  contracts  for  its  con- 
struction; the  payment  for  the 
same,  and  special  assessment  and 
taxes. 

Sec.  25  provides  that  it  is  the 
duty  of  every  person  through 
whose  lands  any  natural  water- 
course extends,  on  which  an  arte- 
sian well  may  be  located  therein, 
to  keep  open  and  unobstructed 
the  flow  of  water  from  such  well. 

Sec.  32.  "All  natural  water 
courses  in  this  State,  whenever  an 
artesian  well  is  located  thereon 
under  the  provisions  of  this  Act, 
are  hereby  created  and  declared 
public  natural  water-courses  for 
the  flow  of  water  from  such  arte- 
sian wells  for  the  benefit  of  the 
public,  and  private  individuals 
located  on  such  water-course  are 
subject  only  to  compensation  for 
damages  as  in  this  Act  provided." 

Sec.  33  provides  that  nothing 
in  this  Act  shall  be  construed  to 
repeal  any  portion  of  the  Act  of 
1891,  quoted  above. 

See  also  Act  approved  March  6, 
1893,  entitled  "An  Act  to  encour- 
age the  construction  of  reservoirs 
for  the  purpose  of  irrigating  agri- 
cultural lands."    Stat.  1893,  p.  189. 

1  See  ante  Sec.  467;  also  Sturr 
vs.  Beck,  133  U.  S.  541. 


CHAPTER    XIX. 
Wyoming. 


I.      SUBJECT   TREATED    IN 

GENERAL. 
Sections. — 

478.  Particular  features  of  State. 

479.  Irrigation  in  the  State. 

II.  GENERAL  STATUTORY  ENACT- 

MENTS. 

4S0.  Organization   of    ditch   com- 
panies. 

481.  Rights  to   use   of   water   for 

irrigation  and  right  of  way 
for  ditches. 

III.  STATE  CONTROL  OF  WATERS. 

482.  Constitutional  provisions. 

483.  Same — continued. 

484.  Act  of  September  22,  1890. — 

Water  Divisions. 

485.  State  Engineer  and  his  duties. 


Sections.— 

486.  Division  Superintendents  and 

their  duties. 

487.  Board  of  Control  and  duties 

thereof. 

488.  Same. — Contests. 

489.  vSame.—  A  p  p  e  a  1.—  Applica- 

tion for  right  to  appropriate 
water. 

490.  Water    Commissioners      and 

their  duties. 

Construction  of  head  gates 
and  measuring  devices. — 
Appeal. 

Statute  of  "  State  Control" 
and  "District  Law"  com- 
pared. 

Criticism  of  the  Act. 


491. 


492. 


493- 


494.  Riparian  rights  in  State. 


I.  Subject  Treated  in  tJeuenil. 

§  478.  Particular  Features  of  State.— Wyoming  lies  prin- 
cipally within  the  Great  Plains  region.  The  continental  divide 
runs  diagonally  across  the  State,  containing  the  headwaters 
of  the  rivers  flowing  into  the  Great  Interior  Basin,  or  south- 
ward to  the  Colorado  river.  From  the  continental  divide  the 
land  as  a  whole  falls  gradually  to  the  north  and  east  toward 
the  Yellowstone  and  Missouri,  the  rivers  flowing  either  north- 
ward into  tlie  Yellowstone  or  eastward  down  the  slope  of  the 
great  plains.  The  agricultural  land  of  Wyoming  as  a  whole 
lies  at  the  highest  altitude  of  that  of  any  State  in  the  Union, 


652  WYOMING.  [§478,479 

nearly  one-half  of  the  total  area  being  above  6,500  feet,  and 
probably  less  than  one  per  cent,  under  4,000  feet.  The 
character  of  the  agriculture  and  of  the  products  is  of  course 
governed  by  this  fact.  And,  as  is  well  known,  the  pastoral 
industries  lead  in  importance  the  areas  devoted  to  these 
practically  embracing  the  greater  part  of  the  State.  In  the 
northern  counties,  where  the  altitude  is  from  3,500  feet  up- 
ward, and  also  along  the  lower  portion  of  the  Platte  nearly 
all  kinds  of  fruit  and  vegetables  of  the  temperate  region  reach 
maturity,  and  in  nearl}^  all  parts  of  the  State  grass  and  the 
hardier  grains  flourish. 

§479.  Irrij^ution  iu  the  State. — Nothing  can  be  grown 
without  irrigation  in  the  State  of  Wyoming,  with  the  excep- 
tion, perhaps,  of  a  scanty  crop  in  some  spot  occasionally 
favored  with  an  unusal  summer's  rain.  No  dependence  can 
be  placed  upon  non-irrigated  crops.  Land  in  this  State,  as 
in  all  parts  of  the  arid  region,  has  no  value  without  water. 
But  the  arable  lands  being  almost  boundless,  agricultural 
development  is  restrained  only  by  the  uncertainty  of  securing 
water.  Irrigation  in  Wyoming  is  still  in  its  infancy,  and 
there  are  but  few  works  of  notable  size.  There  are  a  great 
number  of  small  ditches  leading  from  the  streams  out  upon 
the  lowest  bottom  land,  where  in  most  instances  a  few  well 
located  high  line  canals  would  serve  more  land  with  greater 
economy.  But  since  the  new  laws  providing  for  the  State 
control  of  the  waters  have  been  enacted  a  number  of  works 
have  been  constructed  under  the  superintendence  of  the  State 
Engineer  that  ase  a  credit  to  the  State.  The  possibilities  of 
a  great  irrigation  system  in  the  State  are  good,  since  there  is 
perhaps  a  larger  proportion  of  perennial  springs  of  notable 
size  than  in  an}'  other  part  of  the  west.  A  study  of  the  sta- 
tistics as  furnished  by  the  census  bureau  shows  that  the 
greatest  existing  contrast  in  size  of  irrigated  farms  is  between 
Utah  and  Wyoming,  which  political  divisions,  although  ad- 
joining each  other,  occupy  almost  extreme  positions  as 
regards  methods  and  character  of  agriculture.  In  Utah  the 
land  is  greatly  subdivided,  the  average  size  of  irrigated  farms 
being  twenty-seven  acres,  while  on  the  other  hand  the  average 


§  479-481]  WYOMING.  653 

farm  or  ranch  in  Wyoming  is  one  hundred  and  nineteen  acres. 
In  Wyoming,  therefore,  great  acreages  are  the  rule,  while  in 
Utah  they  are  the  exception. 

II.  General  Statutory  Enactments. 

§480.  Organization  of  Ditcli  Companies. — In  1884  an 
Act  of  the  Legislature  was  passed  for  the  incorporation  of 
ditch  companies,^  which  provides  that  whenever  three  or 
more  persons  associate  to  form  a  company  for  the  purposes  of 
constructing  a  ditch  or  ditches  for  the  purpose  of  irrigating 
lands  or  other  useful  purposes  they  shall  in  their  certificates 
specify  as  follows:  "  The  stream  or  streams  from  which  the 
water  is  to  be  taken,  the  point  or  place  on  said  stream  at  or 
near  which  the  water  is  to  be  taken  out,  the  line  of  said  ditch 
as  near  as  may  be,  and  the  use  to  which  said  water  is  intended 
to  be  applied."  A  right-of-way  is  given  to  the  ditch  com- 
pany, provided  that  the  lines  proposed  shall  not  interfere  with 
any  other  ditch  whose  rights  are  prior.  It  is  also  provided 
that  the  ditch  company  may  sell  the  water  to  farmers  or  other 
persons;  the  rates  at  which  the  water  is  to  be  sold  to  be  fixed 
by  the  County   Commissioners. 

Sec.   548  provides  for  condemnation  proceedings. 

§  481.  Bights  to  Use  Water  for  Irrigation,  and  Right  of 
Way  for  Ditches. — Title  19,  Sec.  1318-1330  of  the  Rev.  Stat, 
of  Wyoming  provide  ^  that  owners  of  land  are  entitled  to  a 
right-of-way  for  ditch  and  canal  purposes;  and  also  provide 
for  the  proceedings  necessary  to  acquire  the  same.  Also  that 
the  owner  may  raise  the  water  from  the  stream  by  means  of 
any  wheel  or  other  machine. 

Section  1347  -^  provides  for  penalties  for  the  destruction  of 
any  irrigation  works  to  be  a  sum  not  exceeding  $100  or 
confinement  in  the  county  jail  not  exceeding  six  months,  or 
both. 

Sec.  1360  provides,  that  it  is  the  duty  of  all  parties  owning 
or  operating  any   ditch,  at   the  point  and   place  where  the 

1  See  Rev.  Stat.  Wyo.,  Sees.  532-  3  Sees.   1317  and   1321   were   re- 

536.  pealed  in    1890. 

^  Rev.  Stat,  of  Wyoming. 


654  WYOMING.  [§481-483 

water  is  diverted  from  its  natural  channel,  to  construct  and 
maintain  some  fit  and  proper  obstruction  whereby  all  fish  will 
be  prevented  from  entering  said  ditch  or  canal.  And  any 
owner  violating  this  provision  shall  be  judged  guilty  of  a 
misdemeanor,  and  on  conviction  thereof  shall  be  punished 
by  a  fine  not  exceeding  $ioo,  or  by  imprisonment  in  the 
county  jail  not  less  than  ten  nor  more  than  sixty  da3-s,  or 
both. 

III.    State  Control  of  Waters. 

§  482.  State  Constitutional  Provisions.— The  admission 
of  Wyoming  as  a  State  on  July  lo,  1890,  was  calculated  to 
work  great  changes  in  its  irrigation  law.  In  the  constitution 
of  the  State,  adopted  by  the  people  in  the  Fall  of  1889,  and 
ratified  by  Congress  on  the  admission  to  statehood,  it  was 
provided  that  all  waters  were  the  property  of  the  State;  that 
there  should  be  a  Board  of  Control,  consisting  of  the  State 
Engineer  and  Superintendents  of  water  divisions,  to  have  con- 
trol of  the  appropriation,  distribution,  and  diversion  of  all 
waters,  subject  to  review  by  the  Courts;  that  priority  of 
appropriation  gives  the  better  right,  and  that  the  State  shall 
be  divided  into  four  water  districts  by  the  legislature.  This 
was  the  beginning  of  the  present  simple  but  eifective  irriga- 
tion laws  of  Wyoming,  which  will  be  discussed  in  the  sub- 
sequent portion  of  this  chapter. 

The  constitutional  provisions  referred  to  were  as  follows: 

Article  i,  Sec.  31,  provides:  "Water  being  essential  to 
industrial  prosperity,  of  limited  amount,  and  easy  of  diver- 
sion from  its  natural  channel,  its  control  must  be  in  the  State, 
which,  in  providing  for  its  use,  shall  equally  guard  all  the 
various  interests  involved." 

Sec.  32  provides:  "Private  property  shall  not  be  taken  for 
private  use,  unless  by  consent  of  the  owner,  except  for  private 
ways  of  necessity,  and  for  reservoirs,  drains,  flumes  or  ditches 
on  or  across  the  lands  of  others,  for  agricultural,  mining,  mill- 
ing, domestic,  or  sanitary  purposes,  nor  in  any  case  without 
due  compensation." 

§483.  Same— Contimied.— Article  8,  Sec.  i,  of  the  new 
State  constitution  provides:  "The  waters  of  all  natural  streams, 


§483,484]  WYOMING.  655 

springs,  lakes  or  other  collection  of  still  water,  within  the 
boundaries  of  the  State,  are  hereby  declared  to  be  the  prop- 
erty of  the  State. 

Sec.  2.  There  shall  be  constituted  a  Board  of  Control,  to  be 
composed  of  the  State  Engineer  and  Superintendents  of  Water 
Divisions,  which  shall  under  such  regulations  as  may  be  pre- 
scribed by  law  have  the  supervision  of  the  waters  of  the  State 
and  of  their  appropriation,  distribution  and  diversion,  and  of 
the  various  officers  connected  therewith.  Its  decisions  to 
be  subject  to  review  by  the  Courts  of  the  State. 

Sec.  3.  Priority  of  appropriations  for  beneficial  uses  shall 
o-ive  the  better  right.  No  appropriation  shall  be  denied,  ex- 
cept when  such  denial  is  demanded  by  public  interest. 

Sec.  4.  The  legislature  shall  by  law  divide  the  State  into 
four  (4)  water  divisions,  and  provide  for  the  appointment  of 
superintendents  thereof. 

Sec.  5.  There  shall  be  a  State  Engineer,  who  shall  be 
appointed  by  the  Governor  of  the  State  and  confirmed  by 
the  Senate;  he  shall  hold  his  office  for  the  term  of  six  (6) 
years,  or  until  his  successor  shall  have  been  appointed  and 
shall  have  qualified.  He  shall  be  President  of  the  Board  of 
Control,  and  shall  have  general  supervision  of  the  waters  of 
the  State  and  of  the  officers  connected  with  its  distribution. 
No  person  shall  be  appointed  to  the  position  who  has  not 
such  theoretical  knowledge  and  such  practical  experience  and 
skill  as  shall  fit  him  for  the  position." 

§  484.  Act  of  December  22,   1890.— Water  Divisions.— 

As  California  is  taken  as  the  model  as  to  her  irrigation  dis- 
trict law  so  Wyoming  may  be  taken  as  the  model  as  to  the 
law  of  State  control  of  waters. 

On  December  22,  1890,  conformably  with  the  constitutional 
provisions  above  quoted,  there  was  approved  "An  Act  pro- 
viding for  the  supervision  and  use  of  the  waters  of  the 
State."  1 

Sections  i  to  5  provide  for  the  division  of  the  State  into 
four  grand  water  divisions,  the  first  of  which  in  a  general 
way  is  to  coincide  with  the  drainage   areas  of  the  basins  of 

IStat.  Wyo.  1890-91,  pp.  91-106. 


656  WYOMING.  [§  484,  485 

the  North  Platte  and  its  tributaries,  the  South  Platte  River 
and  the  Snake;  second,  all  lands  drained  by  the  tributaries  of 
the  Yellowstone  and  the  Missouri  Rivers  north  of  the  water- 
shed of  the  North  Platte  and  east  of  the  sufaimit  of  the  Big 
Horn  Mountains;  third,  all  lands  drained  by  the  Big  Horn 
River  and  its  tributaries;  fourth,  all  lands  drained  by  the 
Green,  Bear  and  Snake  Rivers  and  the  tributaries  thereof, 
except  Snake  River  (a  tributary  of  Green  River)  and  its 
tributaries. 

§485.  State  Engineer  and   His  Duties.— Sees.   6  to   12 

provide  that  the  State  Engineer  before  entering  upon  his 
duties  shall  take  and  subscribe  an  oath,  and  shall  file  with 
the  Secretary  of  State  the  same  and  his  ofl&cial  bond  in  the 
penal  sum  of  five  thousand  dollars  conditioned  for  the  faithful 
discharge  of  the  duties  of  his  office.  His  duties  are  prescribed 
in  the  law  defining  the  duties  of  the  "Board  of  Control," 
and  in  addition  he  shall  make  measurements  and  calculations 
of  the  discharge  of  the  streams  from  which  water  shall  be 
taken  for  beneficial  purposes,  commencing  such  works  upon 
those  streams  that  are  most  used  for  irrigation  or  other  bene- 
ficial purposes.  He  shall  collect  the  facts  and  make  surveys 
to  determine  the  most  suitable  location  for  constructing  the 
works  necessary  and  to  ascertain  the  location  of  the  lands 
best  suited  for  irrigation.  He  shall  examine  reservoir  sites 
and  make  reports  thereof.  He  shall  become  conversant  with 
the  water-ways  of  the  State,  and  the  needs  of  the  State  as  to 
irrigation  matters,  and  in  his  reports  thereof  shall  make  sug- 
gestions as  to  the  amendment  of  existing  laws  or  the  enact- 
ing of  new  laws,  as  his  information  and  experience  may  sug- 
gest. He  shall  keep  in  his  office  full  and  proper  records  of 
his  work,  observations  and  calculations,  all  of  which  shall  be 
the  property  of  the  State.  Provisions  are  made  for  one  as- 
sistant engineer  and  other  assistants,  and  that  the  expenses 
of  the  State  Engineer  or  his  assistants,  when  called  away  from 
their  office,  shall  be  paid  by  the  State. 

Sec.  12.  "  The  State  Engineer  shall  prepare  and  render  to 
the  Governor  bi-ennially,  and  oftener  if  required,  full  and 
true  reports  of  his  work,  touching  all  the  matters  and  duties 


§  486]  WYOMING.  657 

devolving  upon  him  by  virtue  of  liis  office,  which  report  shall 
be  delivered  to  the  Governor  on  or  before  the  thirtieth  of 
November  of  the  year  preceding  the  regular  session  of  the 
legislature." 

§  486.     Division  Superintendents   and    their    Duties. — 

Sees.  13-18.  There  shall  be  one  Superintendent  for  each 
of  the  water  divisions  appointed  by  the  Governor,  to  hold 
office  for  four  years,  who  shall  reside  in  the  water  district  for 
which  he  is  appointed.  He  shall  have  immediate  direction 
and  control  of  the  acts  of  the  Water  Commissioners  and  of  the 
distribution  of  the  water  in  his  division,  and  shall  perform 
such  duties  as  devolve  upon  him  as  a  member  of  the  Board  of 
Control.  "He  shall,  under  the  general  supervision  of  the  State 
Engineer,  execute  the  laws  relative  to  the  distribution  of 
water  in  accordance  with  the  rights  of  priority  of  appropria- 
tion, and  perform  such  other  functions  as  may  be  assigned  to 
him  by  the  State  Engineer."  He  shall  be  governed  by  the 
rules  prescribed  by  the  Act  as  to  the  distribution  of  water, 
but  he  shall  have  authority  to  make  such  other  regulations  to 
secure  the  equal  and  fair  distribution  of  water,  in  accordance 
with  the  rights  of  priorit}^  of  appropriation,  as  may  in  his 
judgment  be  needed  in  his  division. 

Right  of  appeal  is  given  to  any  person  who  may  deem  himself 
injured  by  the  regulations  of  such  Superintendent  to  the  State 
Engineer.  The  State  Engineer  shall,  after  due  notice,  hear 
whatever  testimony  may  be  brought  forward  by  the  petitioner 
and  by  the  Division  Superintendent,  and  shall  have  the  power 
to  suspend,  amend,  or  confirm  the  order  complained  of. 

Each  Water  Commissioner  shall  make  report  to  the  Division 
Superintendent  of  his  division  as  often  as  may  be  deemed 
necessary  by  the  Superintendent.  The  report  must  contain 
the  following  information:  "  The  amount  of  water  necessary 
to  supply  all  the  ditches,  canals  and  reservoirs  of  that  dis- 
trict; the  amount  of  water  actually  coming  into  the  district 
to  supply  such  ditches,  canals  and  reservoirs,  whether  such 
supply  is  on  the  increase  or  decrease;  what  ditches,  canals  and 
reservoirs  are  at  that  time  without  their  proper  supply;  and 
the  probability   as  to   what  the   supply    will    be  during  the 


658  WYOMING,  [§486,487 

period  before  the  next  report  will  be  required;  and  for  such 
other  further  information  as  the  Division  Superintendent  of 
that  division  may  suggest."  The  Superintendent  must  pre- 
serve such  reports  and  from  them  ascertain  what  ditches  and 
reservoirs  are  and  what  are  not  receiving  their  proper  supply 
of  water,  and  if  it  shall  appear  that  an}'  ditch  is  receiving 
water  whose  priorit}^  post-dates  that  of  the  ditch,  canal  or 
reservoir  in  another  district  he  shall  at  once  order  such  post- 
dated ditch  shut  down  and  the  water  given  to  the  elder  ditch 
or  reservoir  as  the  case  may  be.  His  orders  must  direct  at 
all  times  the  enforcement  of  the  priority  of  appropriation. 

§  487.  Board  of  Control  and  Duties  Thereof. — Sees.  19 
to  39  provide  that  the  State  Engineer  and  the  four  Division 
Superintendents  shall  constitute  a  "Board  of  Control,"  of 
which  the  State  Engineer  is  ex-officio  president,  and  a  ma- 
jority of  all  the  members  of  said  board  shall  constitute  a 
a  quorum  to  transact  business. 

Sec.  20  provides  that  it  shall  be  the  duties  of  said  board  to 
determine  the  priority  of  right  to  the  use  of  the  waters  of 
the  State,  which  determination  shall  begin  on  the  streams 
most  used  for  irrigation  and  be  continued  until  all  the  claims 
for  the  appropriation  of  the  same  shall  have  been  adjudicated. 
The  board  shall  prepare  a  notice  setting  forth  the  date  when 
the  Engineer  will  begin  a  measurement  of  any  particular 
stream  and  the  ditches  diverting  the  waters  therefrom,  and  a 
place  and  date  when  the  Superintendent  of  that  Division  shall 
begin  the  taking  of  testimon}'  as  to  the  rights  of  the  parties 
taking  water  therefrom.  Provisions  are  made  for  the  publi- 
cation of  the  notice  and  adjournments.  It  is  also  the  duty  of 
the  Superintendent  to  mail  to  each  party  having  a  recorded 
claim  to  the  waters  of  said  stream  a  similar  notice,  and  he 
shall  in  addition  thereto  enclose  with  said  notice  a  blank 
form  on  which  the  claimants  shall  present  in  waiting  all  the 
particulars  concerning  the  appropriation;  the  said  statement 
to  include  the  following:  "  The  name  and  postoflSce  address 
of  the  claimant.  The  nature  of  the  use  on  which  the  claim 
for  appropriation  is  based.  The  time  of  the  commencement 
of  such  use,    and  if  distributing  works  are   required.     The 


§  487, 488]  WYOMING.  659 

date  of  beginning  the  survey.  The  date  of  beginning  of  con- 
struction. The  date  when  completed.  The  date  of  begin- 
ning and  completion  of  enlargement.  The  dimensions  of  the 
ditch  as  originally  constructed  and  as  enlarged.  The  date 
when  water  was  first  used  for  irrigation  or  other  beneficial 
purposes,  and  if  used  for  irrigation  the  amount  of  land  re- 
claimed the  first  year;  the  amount  in  subsequent  years,  with 
the  dates  of  reclamation,  and  the  amount  of  land  such  ditch 
is  capable  of  irrigating.  The  character  of  the  soil  and  the 
kind  of  crops  cultivated,  and  such  other  facts  as  will  show  a 
compliance  with  the  law  in  acquiring  the  appropriation  and 
the  rank  of  priority  claimed." 

§  488.  Same. — (Contests. — Sees.  22  and  23  provide  that  upon 
the  date  named  in  the  notice  the  Division  Superintendent 
shall  begin  taking  the  testimony  and  must  complete  the  same. 
The  testimony  when  completed  must  be  open  to  inspection  by 
the  various  claimants  upon  certain  days  named  in  a  second 
notice  to  the  claimants.  Should  any  one  who  desires  to  con- 
test any  of  the  rights  of  the  parties  who  have  submitted  their 
evidence  to  the  Superintendent  claim  any  interest  in  a  stream 
he  shall  notify  such  parties  to  appear  before  the  Superinten- 
dent, fixing  the  time  not  less  than  ten  nor  more  than  fifteen 
days  from  the  date  the  notice  is  served  on  such  parties,  and 
the  Superintendent  shall  then  and  there  proceed  to  hear  the 
evidence  for  the  establishment  of  the  rights  to  water  as 
enumerated  in  the  Act.  Upon  the  completion  of  the  evidence 
in  this  second  hearing  it  shall  be  the  duty  of  the  Superinten- 
dent to  immediately  transmit  all  the  evidence  and  testimonj^  in 
said  adjudication  to  the  office  of  the  Board  of  Control. 

Sec.  24.  It  is  the  duty  of  the  State  Engineer  to  proceed  at 
the  time  specified  in  the  notice  to  make  an  examination  of  the 
streams  in  question  and  all  the  works  for  diverting  the  water 
therefrom,  and  the  observation  and  measurement  shall  be 
reduced  to  writing  and  made  a  matter  of  record  in  his  office. 

Sec.  25  provides  that  at  the  first  regular  meeting  of  the 
Board  of  Control  after  the  completion  of  such  measurement 
by  the  Engineer  and  the  return  of  said  evidence  by  the  Divi- 
sion Superintendent  it  shall  be  the  duty  of  the  Board  of  Con- 


660 


WYOMING. 


[§488 


trol  to  make  an  order  determining  and  establishing  the  several 
priorities  of  right  to  the  use  of  waters  of  said  streams.  Each 
appropriation  shall  be  determined  in  its  priority  and  amount, 
by  the  time  by  which  it  shall  have  been  made,  and  the 
amount  of  water  which  it  shall  have  applied  to  beneficial 
purposes.  But  no  allotment  of  water  shall  exceed  one  cubic 
foot  per  second  for  each  sevent}'  acres  of  land  for  which  the 
appropriation  shall  have  been  made.^ 


1  Upon  the  subject  of  a  water- 
right  being  appurtenant  to  land 
the  Supreme  Court  of  Wyoming 
in  the  very  recent  case  of  Frank 
v%.  Hicks,  35  Pac.  Rep.  475,  held 
that  the  right  to  the  use  of  water 
for  the  irrigation  of  land,  together 
with  the  ditch  making  such  right 
available,  becomes  so  attached  to 
the  land  as  part  and  parcel  there- 
of as  to  pass  by  a  conveyance  of 
the  land  without  mentioning  the 
water-right  and  to  be  subject  to 
the  liens  and  liabilities  which  at- 
tach to  the  land. 

And  Mr.  Justice  Conawa}-,  in 
rendering  the  very  elaborate  and 
comprehensive  opinion  upon  this 
subject,  said:  "  So  far  in  this  de- 
cision the  writer  of  this  opinion 
has  purposely  avoided  any  discus- 
sion of  the  meaning  and  proper 
use  of  the  word  '  appurtenant '  or 
'  appurtenance; '  and  it  seems  that 
this  and  similar  cases  might  be 
decided  upon  principles  already 
discussed  without  any  reference 
to  either  of  these  words.  But  the 
words  constantl}'  occur  in  the  re- 
ports of  cases  arising  in  the  arid 
region  and  involving  water  rights, 
and  will  be  found  continually  oc- 
curring in  the  i-ecenl,  cases  from 
which  we  must  derive  our  prin- 
cipal assistance  in  endeavoring  to 
arrive  at  a  correct  solution  of  the 


questions  presented  in  the  case  at 
bar.  It  is  important  that  we  as- 
certain, if  we  can,  whether  the  au- 
thorities applicable,  and  to  which 
we  must  of  necessity  resort,  use 
these  important  words  correctly 
or  not.  This  is  a  consideration 
very  materially  affecting  the 
weight  of  such  decisions  as  au- 
thority. So  far  as  we  are  at  pres- 
ent advised  no  Court  has  said  that 
water-rights  may  not  be  appurte- 
nant to  land.  But  such  appears 
to  be  the  opinion  of  the  Colorado 
Court  of  Appeals  from  its  decision 
of  the  case  of  Bloom  vs.  West,  32 
Pac.  Rep.  846.  At  common  law 
they  might  be,  and  quite  gener- 
ally were,  so  appurtenant,  except- 
ing the  rights  of  riparian  proprie- 
tors to  water  as  part  and  parcel  of 
their  land.  The  doctrine  of  the 
Colorado  Court  of  Appeals  seems 
to  be  that  a  water-right  cannot  be 
appurtenant  to  the  land  upon 
which  the  water  is  used,  because 
the  water-right  is,  if  not  a  cor- 
poreal thing,  at  least  a  separate 
and  distinct  property  right,  which 
may  pass  by  assignment  or  con- 
veyance regardless  of  the  land. 
The  conclusion  does  not  seem 
necessarih"  to  follow  from  the 
premise.  A  water-right  appurte- 
nant to  land  as  an  easement  at 
common  law  always  was  a  separ- 


H88] 


WYOMING. 


661 


The  Act  provides  that  it  shall  be  the  duty  of  the  Engineer 
to  issue  to  all  parties  entitled  a  certificate  setting  forth  the 
amount  of  water  appropriated  and  the  amount  of  prior  appro- 


ate  and  distinct  property  right, 
which  might  pass  by  assignment 
or  convej'ance  regardless  of  the 
land.  It  is  true  the  authority  of 
the  owner  of  the  dominant  estate, 
to  which  a  water-right  was  appur- 
tenant, to  sell  and  convey  the 
water-right  separate  from  the 
land,  was  limited.  But  he  might 
sell  and  convey  it,  separate  from 
the  land,  to  the  owner  of  the 
servient  estate,  or  he  and  the 
owner  of  the  servient  estate  to- 
gether might  sell  and  convej'  it 
to  any  one  else.  '  Appurtenant ' 
does  not  mean,  and  never  meant, 
'inseparable.'  Suppose,  under 
the  common  law,  A  to  be  the 
owner  of  land  containing  several 
rivulets.  Suppose  B  to  be  the 
owner  of  adjoining  land,  and  that 
he  receives  by  grant  from  A  the 
right  to  divert  and  conduct  to  his 
own  land  and  use  on  that  land 
the  water  from  one  of  these  rivu- 
lets, and  does  so.  Here  B's  water- 
right  is  a  property  right  separate 
and  distinct  in  its  origin  from  his 
property  right  in  his  land.  But 
by  common  law  it  has  become  an 
easement  appurtenant  to  that 
land.  Suppose,  further,  that  B 
afterwards  finds  that  he  docs  not 
need  the  water,  and  desires  to  sell 
the  water-right.  A  will  not  pur- 
chase it  because  he  has  abundance 
of  water  without  it,  and  would 
prefer  to  have  the  water  diverted 
from  his  land.  But  C  has  land  on 
the  opposite  side  of  B's  land  from 
A's,  and  wants  the  water.  What 
is  to  prevent   H,  with  the  consent 


and  co-operation  of  A,  from  sell- 
ing to  C  the  water-right,  together 
with  the  right-of-way  for  a  con- 
duit for  the  water  across  his  own 
land  ?  Here  the  water-right  is 
not  only  a  property  right  separate 
and  distinct  in  its  origin  from  the 
property  right  of  B  in  the  land  to 
which  it  became  appurtenant,  but 
it  has  been  sold  and  conveyed  as 
a  separate  and  distinct  property 
right  apart  from  the  land.  And 
the  easement  of  a  water-right,  at 
common  law,  was  a  more  absolute 
propertj'  right  in  the  owner  of  the 
estate  to  which  the  water-right  was 
appurtenant  as  an  easement  than 
in  any  water-right  under  our  sys- 
tem. The  easement,  at  common 
law,  was  not  forfeited  by  non" 
user,  unless  there  was  also  ad- 
verse user  by  the  owner  of  the 
servient  ,  estate  for  a  length  of 
time  sufficient  to  create  a  pre- 
scriptive right.  Washb.  Easem., 
pp.  670,  671.  No  such  rule  applies 
under  our  system.  Non-user  for 
a  much  shorter  time  is  an  aban- 
donment of  the  right.  It  is  further 
to  be  observed  that  the  limitation 
above  referred  to  of  the  right  at 
common  law  of  the  owner  of  an 
estate  to  sell  an  easement  appur- 
tenant to  his  own  estate  separate 
from  the  estate,  was  sustained 
merely  from  a  consideration  of  the 
rights  of  the  owner  of  the  ser- 
vient estate.  It  was  not  because 
the  easement  was  not  property 
right,  nor  because  it  was  insepar- 
able from  the  estate  to  which  it 
was  appurtenant.     But  these  ease- 


662 


WYOMING. 


[§488 


priation,  and  if  such  appropriation  be  for  irrigation  a  descrip- 
tion of  the  legal  subdivision  of  the  lands  to  which  the  water 
is  to  be  applied. 


ments  lay  in  grant,  and,  the  owner 
of  the  servient  estate  having 
granted  an  easement  for  the  bene- 
fit of  any  other  estate,  the  terms 
of  the  grant  could  not  be  changed 
by  any  one  except  himself  or  those 
succeeding  to  his  rights.  Under 
our  system  there  arises  no  ques- 
tion of  servient  and  dominant 
estates.  Water-rights  are  obtained 
by  appropriation  and  use  for  a 
beneficial  purpose  from  the  public 
waters  of  the  United  States  or  this 
State  under  statutes  authorizing 
such  appropriation.  By  such  ap- 
propriation the  appropriator  ac- 
quires not  an  absolute  ownership 
in  the  water  itself,  but  a  right  to 
its  use  which  is  considered  as  prop- 
erty, and  may  be  sold  and  con- 
veyed as  such.  Strickler  vs.  City 
of  Colorado  Springs  (Colo.  vSup.), 
26  Pac.  Rep.  313,  and  authorities 
there  cited.  And  there  is  no  ser- 
vient estate  in  question  in  such 
matter.  But,  so  far  as  we  are  at 
present  advised,  the  case  of  Bloom 
vs.  West,  supra,  is  the  only  au- 
thority for  the  proposition  that  a 
water-right  is  a  corporeal  thing,  or 
the  further  proposition  that  a 
water-right  may  not  become  ap- 
purtenant to  the  land.  We  will  not 
attempt  to  exhaust  the  authorities 
to  the  contrary,  but  will  cite  a  few 
cases,  mo.stly  recent,  showing  the 
prevailing  views  of  the  Courts  in 
the  States  of  the  arid  region." 
*  *  *  Then,  after  citing  several 
cases,  the  Court  continued:  "Thus 
it  seems  that  the  doctrine  is  very 
general  in  the  States  of  the  arid 


region,  that  a  water-right  becomes 
appurtenant  to  the  land  upon 
which  the  water  is  used,  and  the 
ditch,  water  pipe  or  other  conduit 
for  the  water  becomes  attached  to 
the  land  either  as  appurtenant  or 
incident  to  the  land  and  necessary 
to  its  beneficial  enjoyment,  and 
therefore  becomes  part  and  parcel 
of  the  realty.  W^e  have  seen  that 
the  doctrine  of  the  common  law  is 
substantially  the  same,  and  really 
there  appear  to  be  vastly  more 
weighty  reasons  under  conditions 
existing  in  this  region  for  holding 
that  a  water-right  is  appurtenant 
upon  which  the  water  is  used  than 
under  conditions  existing  where 
the  rules  of  the  common  law  were 
developed.  The  disastrous  results 
of  separating  the  land  and  water 
are  immensely  greater  here,  and 
from  considerations  strictly  legal 
and  technical,  the  water-rights 
seem  to  be  more  thoroughly  ap- 
purtenant to  the  land  here  than 
there.  At  common  law  the  ease- 
ment of  a  water-right  was  not  lost 
by  non-user,  and  it  might  be  an 
easement  in  gross  not  connected 
with  the  land  or  any  particular 
beneficial  use.  Under  our  system 
there  is  no  such  thing  as  a  water- 
right  in  gross.  The  application 
of  the  water  to  some  beneficial 
purpose  is  absolutely  requisite. 
And  a  water-right  for  purposes  of 
irrigation  can  no  more  exist 
where  there  is  no  land  to  be  irri- 
gated than  can  an  easement  for 
the  passage  of  light  to  ancient 
windows  exist  where  there  never 


§  489]  WYOMING.  663 

§  480.  Same.— Appeal.— Application  for  Right  to  Appro- 
priate Water.— Sees.  27-33  provide  that  any  party  feeling 
aggrieved  by  the  determination  of  the  Board  of  Control  may 
have  an  appeal  from  its  decision  to  the  District  Court  of  the 
district  within  which  the  appropriation  may  be  situated. 
Provisions  are  made  for  proceedings  on  appeal. 

Sec.  34  provides  that  any  person  or  company  thereafter  in- 
tending to  appropriate  waters  in  the  State  shall  first  make  an 
application  to  the  President  of  the  Board  of  Control  to  make 
such  an  appropriation.  Upon  the  receipt  of  this  application, 
which  shall  be  furnished  by  the  State  Engineer  upon  a  form 
prescribed  by  the  Board,  it  is  the  duty  of  the  Engineer  to 
make  a  record  of  the  same,  and  to  make  an  examination  of 
said  application  to  ascertain  whether  it  sets  forth  all  the  facts 
necessary  to  enable  the  Board  of  Control  to  determine  the 
amount  of  the  proposed  appropriation.  If  found  defective 
the  application  must  be  corrected.  If  there  is  any  unappro- 
priated water  in  the  source  of  supply  named  in  the  applica- 
tion the  State  Engineer  shall  approve  the  same  by  making 
endorsement  thereon,  make  a  record  of  the  same  and  return 
it  to  the  applicant,  who  shall  then  be  authorized  to  proceed 
with  such  work  necessary  to  effect  his  appropriation.  If  there 
be  no  unappropriated  water  in  the  source  of  supply  the  En- 
gineer shall  deny  the  application;  but  he  may  endorse  it 
approved  for  a  less  amount  of  water  than  the  amount  stated 
in  the  application.  Provision  is  also  made  that  appeal  may 
be  taken  from  the  decision  of  the  State  Engineer  to  the  Board 
of  Control  and  from  its  decision  to  the  District  Court. 

Sec.  37.  "The  priority  of  such  appropriation  shall  date 
from  the  filing  of  the  application  in  the  Engineer's  office." 

Sec.  38.  "A  cubic  foot  of  water  per  second  of  time  shall  be 
the  legal  standard  for  the  measurement  of  water  in  this  State, 
both    for   the   purpose  of  determining   the    flow  of  water  in 

wereany  windows.  Andthis  would  that  thinj^-  upon  which  it  so  de- 
see  in  to  be  of  the  very  essence  of  pends."  vSee  for  authorities  ante 
appuitenances.  Where  one  thing  Sees.  267-270.  See  also  McPhail 
depends  upon  another  for  its  ex-  vs.  Forney  (Wyo.),  35  Pac.  Rep. 
istence  it  would  seem  entirely  773. 
proper  to    call    it  appurtenant  to 


664  WYOMING  [§  489-492 

natural   streams   and   for   the   purpose    of  distributing    water 
therefrom." 

§  490.  Water  Commissioners  and  tiieir  Duties.— Sections 
40-45  provide,  That  the  Board  of  Control  shall  divide  the 
State  into  water  districts ,  to  secure  the  best  protection  to  the 
claimants  for  water,  and  the  most  economical  supervision  on 
the  part  of  the  State. 

For  each  district  there  shall  be  appointed  by  the  Governor 
one  commissioner  who  shall  hold   office  for  two  years,  and 
whose  duties  are:  To  divide  the  waters  in  the  natural  streams 
of  his  district  among  the  several  ditches  according  to  the  prior 
rights  of  each;  to  shut  and  fasten   the  head-gates  of  ditches 
when  in  times  of  scarcity  of  water  it  is  necessary  to  do  so  by 
reason  of  the  priority  of  rights  of  others  taking  water  from 
the   same   stream.     Every  person  who  shall    wilfully  open, 
close,  change  or  interfere  with  any  head-gate  or  water-box 
without  authority  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  thereof  shall  be  fined  a  sum  not  exceeding 
$100,  or  imprisoned  in  the  county  jail  for  the  term  of  six 
months,  or  both.     The  Water  Commissioner  is  given  power 
to  arrest  persons  offending.     Said  Commissioners  shall   not 
begin  their  work  until  they  have  been  called  upon  by  two  or 
more  managers  of  ditches,  stating  that  there  is  a  necessity; 
and  shall  not  continue  performing  services  after  the  necessity 
shall  cease. 

§  491.  Construction  of  Head-Gates  and  Measuring;  De- 
yjces. — Appeal. — The  appropriator  shall  maintain  a  substan- 
tial head-gate  at  the  point  where  the  water  is  diverted  and  a 
measuring  device  for  the  purpose  of  assisting  the  Water  Com- 
missioner in  determining  the  amount  of  water  that  may  be 
diverted  into  his  ditch  from  the  stream. 

Sec.  50  provides  that  appeal  may  be  taken  from  the  judg- 
ment or  decree  of  the  District  Court  to  the  Supreme  Court  of 
the  State. 

§  492.  Statute  of  "  State  Control  "  and  "  District  Law  " 

Compared. — This  law  providing  for  the  State  control  and  use 
of  the  waters  of  the  State  of  Wyoming  is  the  most  elaborate 


§  492, 493]  WYOMING.  665 

and  effective  statute  of  this  class  of  any  of  the  States  or  Terri- 
tories of  the  arid  region.  In  contrast  .to  the  district  law  of 
California,  as  adapted  to  the  thickly  settled  States,  the  pres- 
ent law  of  Wyoming  may  be  considered  the  best  and  most 
effective  law  upon  the  subject  of  water-rights  governing  the 
sparsely  settled  portions  of  the  arid  west.  Although  we  re- 
gard the  "  district  law  "  as  the  true  economic  principle  in 
the  control  and  application  of  water  for  irrigation  we  do  not 
think  that  the  condition  of  the  sparsely  settled  States  like 
Wyoming  is  ready  for  such  a  law.  In  California  when  the 
district  law  was  adopted  the  conditions  in  many  parts  of  the 
State  where  the  districts  were  actually  organized  were  such 
as  to  make  the  handling  of  waters  for  irrigation  almost  as 
clearly  a  matter  for  municipal  control  as  the  handling  of 
water  for  domestic  use  in  cities,  or  the  paving  of  streets  or 
the  laying  of  sidewalks.  Of  What  utility  is  a  district  law  in 
the.  sparsely  settled  sections  of  the  country  where  the  solitude 
is  yet  to  be  broken  by  the  sounds  of  civilization,  and  where 
money  and  labor  must  first  perform  great  tasks  before  there 
can  be  a  population  sufficient  to  vote  bonds  or  fill  the  offices 
of  the  district;  and  where  all  the  natural  conditions  of  the 
country  are  entirely  different  from  those  in  California,  where 
the  ' '  Wright  Law  ' '  has  been  so  successful  ? 

§  WS.  Criticism  of  tlie  Act.— This  last  legislation  gives 
a  speedy  and  final  solution  of  many  of  the  troubles  that  be- 
fore its  passage  beset  the  irrigator  in  the  State  of  Wyoming, 
and  its  practical  operations  are  being  watched  by  the  people 
throughout  the  arid  region,  as  it  seems  to  promise  so  much  to 
them.  In  preparing  this  law  advantage  was  taken  of  the  ex- 
perience of  other  States,  and  much  that  is  best  has  been  in- 
corporated from  the  laws  of  other  irrigating  countries.  The 
law  is  unique  in  this,  that  the  State  does  not  necessarily  wait 
for  controversies  and  losses  to  arise,  but  of  its  own  motion 
steps  in  and  ascertains  how  much  water  is  available  for  irri- 
gation, who  are  the  claimants  to  this  water,  and  then,  know- 
ing these  fundamental  facts,  gives  the  use  of  the  water  to  the 
proper  persons,  employs  its  own  agents  to  see  that  the  distri- 


666  WYOMING.  [§  493 

bution  is  made.  In  the  State  of  Wyoming,  at  least,  there 
will  no  longer  be  the  ludicrous  spectacle  of  learned  judges 
solemnly  decreeing  the  right  to  from  two  to  ten  times  the 
amount  of  water  flowing  in  the  stream,  or  in  fact  amounts  so 
great  that  the  channel  of  the  stream  could  not  possibly  carry 
them,  thus  practicallj^  leaving  the  questions  at  stake  as 
unsettled  as  before. 

From  a  stud}^  of  the  law  it  is  verj^  apparent  that  the  State 
Engineer  and  Board  of  Control  hold  the  most  important  offices 
in  that  State  so  far  as  its  agricultural  interests  are  concerned, 
and  by  a  wise  and  skillful  exercise  of  the  functions  intrusted 
to  them  can  bring  about  great  changes  for  the  better  in  the 
development  of  the  agricultural  resources  of  the  State.  The 
State  Engineer  is  also  the  president  of  the  Board  of  Control. 
Objection  may  be  made  by  some  that  there  is  too  great  a 
centralization  of  power  in  one  man.  But  this  is  answered 
by  the  provision  for  appeal  to  the  Courts  by  any  party  feeling 
himself  aggrieved,  and  by  the  provision  that  when  the  case 
shall  be  finally  decided  the  right  of  the  prevailing  party 
relates  back  to  the  first  step  taken  by  him  to  secure  his 
water-rights.  Thus  his  rights  are  not  jeopardized  by  the 
delays  often  attendant  upon  Court  proceedings.  The  law 
provides  that  the  priority  of  the  claimant's  rights  shall  be  the 
basis  for  the  determination  of  his  right  to  use  the  water. 
The  law  also  provides  for  the  adjudication  of  his  claim,  which 
when  made  entitles  the  claimant  to  a  certificate  of  appropria- 
tion to  the  water,  stating  the  amount  of  water  he  is  entitled 
to,  the  land  it  is  intended  to  irrigate  and  the  number  of  his 
priority.  And  now  for  the  first  time  he  has  a  deed  to  the 
water,  which  is  even  more  important  and  valuable  than  the 
deed  to  his  land,  from  the  fact  that  his  land  would  be  abso- 
lutely worthless  without  the  water.  It  will  be  thus  seen  that 
while  five  years  ago  Wyoming  had  practically  no  water 
law  it  stands  to-day  pre-eminently  at  the  head  of  the  list  re- 
specting irrigation  legislation  adopted  by  the  various  States 
and  Territories  of  the  arid  region  as  applying  to  the  sparsely 
settled  communities  of  that  region.  It  has  embodied  in  its 
law  all  that  has  been  found  good  and  efficient  in  the  opera- 
tion of  the  laws  of  the  other  States  and  Territories  with  the 


§  493, 494]  WYOMING.  667 

exception  of  the    "  District  Laws,"  of  which  California  has 
the  model. 

§  494.  Riparian  Rights  in  State.— The  doctrine  of  riparian 
rights  in  the  State  of  Wyoming  may  be  considered  to  have 
been  wholly  abandoned.  The  physical  condition  of  that 
country,  which  is  arid  to  the  extreme,  and  the  land  absolutely 
valueless  without  the  diversion  and  application  of  water  upon 
it,  would  not  permit  of  the  common  law  theory  of  riparian 
rights. 


CHAPTER   XX. 


I.      SUBJECT   TREATED    IN    GEN- 
ERAL. 
Section.— 

495.  Particular  features  of  State. 

496.  Irrigation  in  State. 

II.      GENERAL   STATUTORY 

ENACTMENTS. 

497.  Statutory     water     rights     in 

general. — Corporatiofis. 

498.  Same. — General    rights    pro- 

vided. 

499.  Corporations — Powers  of. 

500.  Condemnation  of  land  need- 

ed.— Condemnation  of  ripa- 
rian rights. 

501.  Completion  of  works. — Prior 

appropriations. —  Rights  to 
change  place  of  diversion. 
— Route  to  be  followed. 


Section.— 

502.  No  tract  to  be  burdened  with 

more  than  one  ditch. —  If 
practicable,  natural  stream 
may  be  used  for  ditch. 

503.  Damages. —  Highways. — Em- 

bankments.—  Distributing 
ditches. 

504.  Lien. — Ditches   are    real    es- 

tate.— Abandonment. — Pen- 
alty for  injury  to  ditches. 

505.  Right     of     way     over    State 

lands. — Control  of  Legisla- 
ture. 

506.  Act  of  Februar}-  22,  1893. 

507.  Constitutionality    of    Act   of 

February,  1891. 

508.  Riparian  rights  in  Oregon. 


I.    Subject  Treated  in  General. 

§  495.  Particular  Features  of  State. — That  part  of  Ore- 
gon lying  east  of  the  Cascade  range,  and  comprising  an  area 
of  over  thirty-five  millions  acres,  although  forming  the  greater 
portion  of  the  State,  is  known  as  Eastern  Oregon,  and  may  be 
properly  classed  with  the  arid  region.  The  climate,  as  com- 
pared with  the  rest  of  that  region,  is  unusually  mild.  As  a 
rule  there  is  sufficient  moisture  two  or  three  years  out  of  five 
to  raise  fair  crops.  It  may  be  said,  therefore,  that  while  in 
one  sense  irrigation  is  not  absolutely  essential,  as  farmers  can 
make  a  precarious  living  without  it,  yet,  on  the  other  hand, 
without  irrigation  the  most  valuable  resources  will  lie  dor- 
mant. 


§495-497J  OREGON.  669 

The  general  physical  condition  of  the  arid  portion  of  the 
State  may  be  briefly  described  as  follows:  The  geological 
formation,  soil  and  climate  may  be  said  to  be  practically  the 
same  as  the  State  of  Washington,  which  has  been  described.  ^ 
In  general  the  soil  of  the  lands  available  for  cultivation  may 
be  said  to  be  practically  the  same  throughout  the  State,  with 
the  exception  of  the  small  valleys  along  some  of  the  mountain 
streams,  where  the  sub-strata  is  drift  and  where  the  soil  is  of 
a  different  character.  The  formation  is  volcanic,  and  conse- 
quently the  soil  is  volcanic  ash.  That,  when  supplied  with 
sufficient  moisture,  is  the  most  productive  soil  in  the  world. 

§  496.  Irrigatiou  in  State. — Irrigation  has  been  quietly  and 
gradually  introduced  and  practiced  in  a  simple  manner,  each 
farmer  building  his  own  ditch  and  relying  upon  his  own  un- 
aided effort.  Within  the  last  few  years  many  projects  have 
been  set  on  foot  looking  toward  the  more  complete  utilization 
of  the  water  supply  of  the  eastern  part  of  the  State  for  this 
purpose.  Not  only  has  irrigation  received  a  lasting  stimulus 
in  the  more  arid  portions  of  the  State,  where  it  is  essential, 
but  its  benefits  are  beginning  to  be  seen  in  regions  where  the 
rainfall  is  considered  abundant.  While  it  is  true  that  in  some 
portions  of  the  State  agricultural  development  has  without 
irrigation  progressed  with  some  degree  of  success,  it  is  also 
true  that  the  area  where  even  partial  success  in  this  direction 
was  possible  has  for  years  been  fully  occupied.  Hence  it 
follows  that  any  extention  of  the  cultivation  of  Oregon  lands 
in  the  future  must  depend  upon  bringing  land  and  water 
together  by  artificial  means. 

II.  General  Statutory  Enactments. 

§  497.  Statutory  Water  Riglits  in  Ge)ierai.— Corporations. 

On  the  iStli  day  of  February,  1891,  there  was  filed  in  the 
office  of  the  Secretary  of  State  of  Oregon,  and  thereafter 
became  a  law,  "  An  Act  to  provide  for  the  appropriation  of 
water  from  the  lakes  and  running  streams  of  the  State  of 
Oregon  for  the  purpose  of  irrigation  and  supplying  water  for 

1  See  Ante  Section  413-414. 


670  OREGOX.  [§  497-499 

household  and  domestic  use,  and  for  watering  live  stock  upon 
dry  lands,  and  making  charges  for  water  supplied;  allowing 
the  condemnation  of  lands  for  right-of-way;  prescribing  the 
manner  of  making  appropriations  and  effecting  condemna- 
tion of  lands;  allowing  the  condemnation  of  rights  of  riparian 
proprietors  arising  from  their  location;  regulating  the  manner 
of  constructing  and  operating  ditches  and  canals,  flumes, 
reservoirs,  distributing  ditches  and  feeders;  prescribing  right 
of  recovery  of  damages  resulting  from  the  construction  and 
operation  of  the  same;  securing  the  protection  of  highways; 
granting  a  lien  upon  crops  raised  by  irrigation,  and  providing 
for  its  enforcement;  declaring  all  such  ditches  or  canals  or 
flumes  to  be  real  estate,  and  providing  for  the  conveyance  of 
the  same;  providing  punishment  for  trespassers;  prescribing 
the  manner  of  settlement  of  conflicting  rights  by  suit,  and 
granting  right  of  way  over  State  lands. 


"  1 


§  498.  Same.— (jreueral  Rights  Pro\ide(l.— Section  i  of  the 

Act  provides  "  That  the  use  of  water  of  the  lakes  and  running 
streams  of  the  State  of  Oregon  for  general  rental,  sale  or  dis- 
tribution, for  purposes  of  irrigation  and  supplying  water  for 
household  and  domestic  consumption  and  watering  live  stock 
upon  dry  lands  of  the  State  is  a  public  use,  and  the  right  to 
collect  rates  or  compensation  for  such  use  of  said  water  is  a 
franchise.  A  use  shall  be  deemed  general  within  the  purview 
of  this  Act  when  the  water  appropriated  shall  be  supplied  to 
all  persons  whose  lands  lie  adjacent  to  or  within  reach  of  the 
line  of  the  ditch  or  canal  or  flume  in  which  said  water  is  con- 
veyed, without  discrimination  other  than  priority  of  contract, 
upon  payment  of  charges  therefor  as  long  as  there  may  be 
water  to  supply." 

§  499.  Corporations. — Powers  of. — Sec.  2  provides  that  a 
corporation  organized  for  the  construction  and  maintenance 
of  a  ditch  or  works  for  general  irrigation  or  other  purposes 
may  appropriate  and  divert  water  from  its  natural  bed  or 
channel  and  condemn  the  right-of-way  for  its  ditch,  canal  or 

1  See  Stat.  1891,  p.  52-60. 


§  499, 500]  OREGON.  <>T1 

flume,  and  it  ma\-  also  condemn  the  rights  of  riparian  pro- 
prietors upon  the  lake  or  stream  from  which  such  appropria- 
tion is  made  upon  complying  with  the  terms  of  the  Act;  it 
may  also  condemn  land  for  reservoir  sites  for  storing  water  for 
future  use,  and  for  rights-of-way  for  feeders  carrying  water  to 
such  reser\'oirs,  and  for  ditches  carrying  the  same  away,  and 
distributing  ditches;  and  it  shall  have  the  right  to  take  from 
any  running  stream  in  the  State  and  store  away  water  not 
needed  for  immediate  use  by  any  person  having  a  superior 
right  thereto. 

Sec.  3.  Such  corporation  may  enter  upon  any  land  for  the 
purpose  of  locating  a  point  of  diversion  of  the  water  and 
making  the  necessary  surveys  for  constructing  the  ditch  or 
other  works . 

Sec.  4.  "  When  a  point  of  diversion  shall  have  been  selected 
such  corporation  shall  post  in  a  conspicuous  place  thereat  a 
notice  in  writing  containing  a  statement  of  the  name  of  the 
ditch  or  canal  or  flume,  and  of  the  owner  thereof,  the  point 
at  which  its  head-gate  is  proposed  to  be  constructed,  a  general 
description  of  the  course  of  said  ditch  or  canal  or  flume,  the 
size  of  the  ditch  or  canal  or  flume  in  width  and  depth,  the 
number  of  cubic  inches  of  water  by  miner's  measurement 
under  a  six  inch  pressure  intended  to  be  appropriated,  and 
the  number  of  reservoirs,  if  any." 

Sec.  5.  provides  that  within  ten  days  from  the  date  of 
posting  such  notice  the  company  must  file  for  record  in  the 
ofiice  of  the  County  Clerk  or  Recorder  of  Conveyances  a  sim- 
ilar notice,  together  with  a  map  showing  the  general  route 
of  said  ditch .  Within  sixty  days  from  the  completion  of 
such  works  the  corporation  shall  in  like  manner  file  a  map 
of  definite  location  of  said  ditch  or  works  by  legal  subdivi- 
sions of  the  land  traversed  thereby. 

§  500.  Coiideniiiation  of  Land  Needed.— Condeninjitiou  of 
Riparian  Rights. — Sec.  6  provides  whenever  any  such  cor- 
poration shall  have  acquired  the  right  to  appropriate  water  it 
may  proceed  to  condemn  land  and  premises  necessary  for 
right-of-way  for  its  ditch  or  canal  or  flume,  and  likewise  for 
its  distributing  ditches  and  feeders  and  sites  for  reservoirs; 


672  OREGON.  [§  500, 501 

but  the  right-of-way  for  the  main  line  of  the  ditch  is  limited 
to  one  hundred  feet  in  width,  and  for  each  distributing  ditch 
or  feeder  thirt}^  feet  in  width,  and  for  a  site  for  each  reser\'-oir 
twenty  acres  from  one  owner  or  for  every  ten  thousand  inches 
of  water,  miner's  measurement,  or  fraction  thereof  over  half 
of  the  capacity  of  the  main  ditch  or  canal  or  flume  for  every 
twenty  miles  of  its  length. 

Sec.  7  provides  that  if  no  agreement  can  be  reached  be- 
tween the  owner  of  such  lands  and  the  corporation  as  to  the 
compensation  to  be  paid  therefor  such  corporation  may  main- 
tain an  action  in  the  Circuit  Court  for  the  purpose  of  having 
such  lands  appropriated  to  its  use,  and  for  determining  the 
compensation  therefor. 

Sec.  8.  "  Such  corporation  may  also  maintain  an  action  for 
the  condemnation  and  appropriation  of  the  right  to  the  flow 
of  water  in  any  stream  from  which  it  proposes  to  divert  water 
below  the  point  of  diversion  vested  in  the  owners  of  lands 
lying  contiguous  to  such  streams  by  virtue  of  their  loca- 
tion." 

Such  actions  shall  be  brought  in  the  county  where  the  lands 
to  be  affected  are  situated.  "  But  no  person  owning  lands 
lying  contiguous  to  any  stream  shall  without  his  consent  be 
deprived  of  water  for  household  or  domestic  use,  or  for 
the  purpose  of  watering  his  stock,  or  of  water  necessary  to 
irrigate  crops  growing  upon  such  lands  and  actually  used 
therefor. ' ' 

§  501.  Completion  of  Works. — Prior  Apinopriatiou. — 
Right  to  Change  Place  of  Diversion. — Route  to  be  Fol- 
lowed.— The  Act  provides  that  within  six  months  from  the 
date  of  posting  of  notice  the  actual  construction  of  the  works 
must  be  commenced  and  must  be  prosecuted  without  inter- 
mission except  as  resulting  from  the  act  of  God,  the  elements 
or  unavoidable  casualties  until  the  same  be  completed.  "And 
the  actual  capacity  of  said  ditch  or  canal  or  flume,  when  com- 
pleted, shall  determine  the  extent  of  the  appropriation,  any- 
thing contained  in  the  notice  to  the  contrary  notwithstanding." 
Upon  compliance  with  the  provisions  of  the  Act  the  right  to 
the  use  of  the  water  appropriated  relates  back  to  the  date  of 
posting  the  notice. 


§501,502]  OREGON.  673 

Sec.  lo  provides:     "All  existing  appropriations  of  water 
made  for  beneficial  purposes  by   any  person,  corporation  or 
company  in  accordance  with  the  laws  of  the  United  States, 
or  of  the    State  of  Oregon,  or  the  decisions  of  its  Supreme 
Court,  or  the  established  customs  or  regulations   of  the  dis- 
trict in  which  such    appropriation  has  been  made,  shall    be 
respected  and  upheld  to  the  extent  of  the  amount  of  water 
actually  appropriated;  nor  shall  any  existing  mill  be  deprived 
of  its  water  power,  however  lawfully  acquired,  without  the 
consent  of  its  owner;  and  all  controversies  respecting  rights 
to  water  under  the  provisions  of  this  Act  shall  be  determined 
by  the  date  of  the  appropriation  as  respectively  made  there- 
under by  the  parties." 

Sec.  1 1  provides  that  the  place  of  diversion  may  be  changed, 
and  rights-of-way  may  be  condemned  for  that  purpose  in  the 
same  manner  as  in  the  case  of  original  construction. 

Sec.  12.  The  shortest  and  most  direct  route  practicable, 
having  reference  to  cost  of  construction  of  the  works,  must 
be  selected. 

§  502.  No  Tract  to  be  Burdeued  witli  more  than  One 
Ditch  if  Practicable— Natural  Stream  may  be  Used  for 
Ditch. — Section  13  provides:  No  tract  of  improved  land  shall, 
without  the  consent  of  the  owner,  be  subjected  to  the  burden 
of  two  or  more  ditches  when  the  same  object  can  be  practi- 
cally obtained  by  uniting  and  conveying  all  the  water  neces- 
sary to  be  conveyed  through  such  property  in  one  ditch.  Any 
corporation  having  constructed  a  ditch,  canal  or  flume,  shall 
allow  any  other  corporation  to  enlarge  any  of  such  works  so 
as  not  to  interfere  with  the  operations  of  the  corporation 
owning  the  same,  and  use  such  works  in  common  with  the 
corporation  owning  the  same,  upon  the  payment  to  such  cor- 
poration of  a  reasonable  proportion  of  the  cost  of  constructing 
and  maintaining  such  works;  such  corporations  shall  also  be 
jointly  liable  to  any  person  damaged  along  the  line  of  com- 
mon user  by  reason  of  the  faulty  construction  of  such  portion 
of  such  works,  and  the  one  securing  the  use  of  the  same  shall 
be  liable  to  the  owner  for  all  damage  by  it  sustained  growing 
out  of  the  enlargement  of  said  works. 


674  OREGON.  [§  502-504 

Any  corporation  may  make  use  of  natural  depressions  in 
the  earth  along  tha  line  thereof  to  all  intents  and  purposes  as 
parts  of  its  ditch. 

§  503.    Damages.— Higiiways.— Eml)aiikments— Bistrib- 

nting  Ditches.— Sections  15-19  provide:  That  every  corpora- 
tion under  this  Act  shall  be  required  to  erect  and  keep  in 
good  repair  a  good  and  sufficient  head-gate;  shall  be  liable 
lor  all  damages  growing  out  of  want  of  strength  in  the  banks 
or  walls,  or  negligence  or  want  of  care  in  the  management  of 
the  ditch  or  other  works;  that  it  must  construct  good  and 
substantial  bridges  over  its  ditches  where  they  cross  a  high- 
way; that  the  embankments  must  be  carefully  kept  and 
maintained,  so  as  to  prevent  the  water  from  wasting  and  from 
flooding  or  damaging  the  premises  of  others,  and  it  shall  not 
divert  at  any  time  any  water  for  which  it  has  not  actual  use 
or  demand. 

Sec.  19  provides:  Such  corporation  may  acquire  the  right 
of  way  across  lands  lying  contiguous  to  its  ditch  for  distrib- 
uting ditches,  but  it  shall  not  be  compelled  so  to  do,  nor  to 
construct  distributing  ditches  upon  any  lands  for  the  use  of 
the  owners  thereof.  But  when  any  person  shall  construct  a 
distributing  ditch  to  the  line  of  right-of-way  for  the  ditch  or 
canal  and  shall  tender  to  such  corporation  the  rates  usually 
charged  customers  of  water  along  the  line  of  said  ditch,  for 
any  amount  of  water  said  corporation  may  have  in  its  ditch, 
or  may  have  the  right  and  ability  to  appropriate  above  the 
amount  sold,  said  corporation  shall  connect  such  distributing 
ditch  with  its  ditch  and  turn  therein  the  amount  of  water  for 
which  tender  is  made,  and  if  it  shall  fail  or  refuse  to  do  so  it 
shall  be  liable  to  such  persons  for  all  loss  or  damage  sustained 
by  reason  of  such  failure. 

§  504.  Lien.— Ditclies  are  Real  Estate.— Ahandoniiient.— 
Penalty  for  Injury  to  Ditches.— Section  20.  "Any  corpora- 
tion acting  under  the  provisions  of  this  Act  which  shall  sup- 
ply water  to  any  person  for  irrigation  of  crops  shall  have  a 
lien  upon  all  crops  raised  by  the  use  of  such  water  for  the 
reasonable  value  of  the  water  supplied,  which  lien  shall  be 


§  504-506]  OREGON.  675 

a  continuing  one  and  shall  bind  said  crops  after  as  well  as 
before  the  same  has  been  gathered,  and  without  record  shall 
be  preferred  to  all  other  liens  or  encumbrances  whatever  upon 
said  crops.     Such  liens  may  be  enforced  by  suits  in  equity. 

Sec.  21  provides:  That  all  ditches  or  canals  or  flumes  are 
declared  to  be  real  estate,  and  the  same  or  any  interest 
therein  shall  be  transferred  by  deed  only,  duly  witnessed 
and  acknowledged. 

Sec.  22  declares  that  any  failure  or  neglect  to  use  the  works 
of  said  company  for  the  period  of  one  year  shall  be  deemed 
an  abandonment,  "And  the  water  appropriated  shall  revert 
to  the  public  and  be  subject  to  other  appropriations  in  order 
of  priority.  But  the  question  of  abandonment  shall  be  one 
of  fact,  to  be  tried  and  determined  as  other  questions  of  fact." 

Sec.  23  declares:  Any  person  who  shall  knowingly  and 
wilfully  injure  any  property  of  a  corporation  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof  shall 
be  punished  by  a  fine  of  not  less  than  ten  dollars  nor  more 
than  three  hundred  dollars,  or  by  imprisonment  in  the  county 
jail  not  less  than  one  month  nor  more  than  one  year.  Also 
that  any  person  so  trespassing  shall  be  liable  for  all  damage 
caused  by  his  act  to  the  owner  of  said  property. 

§  505.  Right  of  Way  over  State  Lands. — Control  of  the 
Legislature. — The  Act  provides  for  a  right-of-way  across  any 
and  all  lands  belonging  to  the  State  of  Oregon  not  under  the 
contract  of  sale. 

Section  26  provides:  That  "this  Act  may  at  any  time  be 
amended  by  the  legislative  assembly,  and  commissioners  for 
the  management  of  water-rights  and  the  use  of  water  may  be 
appointed,  and  rates  for  the  use  of  water  may  be  fixed  by  the 
legislative  assembly  or  by  such  commissioners;  but  rates 
shall  not  be  fixed  lower  than  will  allow  the  net  profits  of  any 
ditch  or  canal,  or  flume,  or  system  thereof,  to  equal  the  pre- 
vailing legal  rate  of  interest  on  the  amount  of  money  actually 
paid  in  and  employed  in  the  construction  and  operation  of 
said  ditch  or  canal,  or  flume,  or  system  thereof." 

§  506.  Act  of  February  22, 1803.— On  the  22d  of  February, 
1893,  there  became  a  law:    "An  Act  to  govern  the  priority  of 


676  OREGON.  [§  506, 507 

right  to  waste,  spring  and  seepage  waters,  defining  the  rights 
of  owners  of  springs  and  seepage  waters,  authorizing  riparian 
owners  to  employ  wheels,  pump?,  and  other  machinery  for 
lifting  water,  and  declaring  what  uses  of  water  shall  have  the 
preference."  ^ 

Section  i  of  said  Act  provides:  "That  all  ditches  now  con- 
structed or  hereafter  to  be  constructed,  for  the  purpose  of 
utilizing  the  waste,  spring  or  seepage  waters  of  the  State  shall 
be  governed  by  the  same  laws  relating  to  priority  of  right 
as  those  ditches  constructed  for  the  purpose  of  utilizing  the 
waters  of  running  streams:  provided,  that  the  person  upon 
whose  lands  the  seepage  or  spring  waters  first  arise  shall  have 
the  right  to  the  use  of  such  waters." 

Sec.  2.  Any  person  owning  land  bordering  upon  a  stream 
is  given  the  right  to  employ  machinery  for  the  purpose  of 
raising  water  to  the  level  required,  provided,  that  the  use  of 
such  water  shall  not  conflict  with  the  better  or  prior  right  of 
any  other  person. 

Sec.  3.  "When  the  waters  of  any  natural  stream  are  not 
sufficient  for  the  service  of  all  those  desiring  to  use  the  same 
those  using  the  water  for  domestic  purposes  shall,  subject 
to  such  limitations  as  maj^  be  prescribed  by  law,  have  the 
preference  over  those  claiming  such  water  for  any  other  pur- 
pose; and  those  using  the  water  for  agricultural  purposes 
shall  have  the  preference  over  those  using  the  same  for 
manufacturing  purposes." 

§  507.  Constitutiouality  of  the  Act  «f  the  18th  Februai\v, 

1891.  ^ — The  Supreme  Court  of  Oregon,  in  the  case  of  Uma- 
tilla Irrigation  Co.  vs.  Barnhart,-^  held  that  this  Act  author- 
izing a  corporation  for  certain  purposes  to  condemn  rights-of- 
way,  and  rights  of  riparian  proprietors  upon  lakes  or  streams, 
declaring  the  use  of  such  water  under  the  Act  must  be  a 
public  use,  and  providing  the  manner  in  which  such  corpor- 
ation may  sue  for  such  condemnation,  and  saving  the  rights 
of  riparian  proprietors  in  water  for  household  or  domestic 
use  or  for  watering  stock,  or  that  may  be  necessarj^  to  irrigate 

1  See  Stat.  1893,  p.  150.  2  See  Ante  Sees.  496-504,  Stat.  Oreg.  1891, 
52-60.     •<  (Oreg.)  30  Pac.  Rep.  37. 


^  507]  OREGON.  677 

crops  growing  upon  such  lands,  and  actuall}'  used  therefor, 
is  constitutional  law.     And  Mr.  Chief  Justice  Strahan,  in  the 
opinion  of  the  Court,  said:   "The  first  section  of  the  Act  ex- 
pressly declares  that  the  use  of  the  waters  of  this  State  for  the 
purposes  specified  in  the  Act  is  a  public  use,  and  the  right  to 
collect  rates  or  compensation  for  such  use  of  said  water  is  a 
franchise.     The  legislature  has  the  sole  power  to  determine 
when  and  in  what  cases  the  power  of  eminent  domain  may  be 
exercised    and   private   propert)^    taken,  subject  only  to  two 
limitations,  one  is  that  it  cannot  be  taken  for  private  use; 
and  the  other  is  that  compensation  must  be  made  before  it  is 
taken,  unless  in  case  of  the  State.     The  legislature  having 
declared  the  use  of  water  for  the  purposes  named  in  the  Act 
to    be  a  public  use  this   Court  cannot,  from  anything  that 
appears  in  this  case,  say  that  declaration  is  not  true.   *     *     * 
It  is  well  known  that  there  are  extensive  tracts  of  arid  land 
in  eastern  Oregon,  unproductive  and  almost  worthless  without 
irrigation,  which   could   be  made   productive  by   the  use  of 
water.     The  reclamation  of  this  class  of  lands  is  the  object 
of  the  Act  in  question,  and  we  cannot  say  that  it  is  a  misap- 
plication of  the  power  of  eminent  domain  to  accomplish  such 
results.    Doubtless,  in  some  instances,  it  may  be  the  means  of 
causing  riparian  owners  much  inconvenience  and  expense  and 
even  loss;  but  these  are  some  of  the  occasional  consequences 
of  such  laws.     But,  generally,  juries  may  be  trusted  in  these 
matters.     Their  knowledge  of  such  afi"airs  will  usually  enable 
them  to  put  a  proper  estimate  upon  the  value  of  the  interest 
which  may  be  taken  under  the  law  and  of  the  damages  which 
the   taking  inflicts.     To    take   from    the   farmers    along   the 
Umatilla  river  the  water  which  has  made  their  land  so  verj'^ 
productive  is  almost  equivalent  to  the  taking  of  all  the  lands 
affected  by  the  water.     We  cannot   reverse    this  judgment 
without  overturning  the  Act  of  the  Legislature  under  which 
the  proceedings  were  taken,  and  we  do  not  see  our  way  clear 
to  do  this.     The  Act  is  one  that  effects  large  property  inter- 
ests, the  policy  and  scope  of  which  may  be  of  doubtful  utility; 
but  these  are  not  enough  to  enable  us  to  overthrow  it.     Before 
we  could  do  that  it  must  plainly  contravene  some  provision 
of  the  organic  law,  and  we  cannot  find  that  it  does." 


678  OREGON  [§  508 

§  508.  lliparian  Rights  in  Oresoii.— Riparian  rights  are 
recognized  and  protected  in  the  State  of  Oregon  subject  to 
the  right  of  eminent  domain.  The  Act  of  1891  expressly 
recognizes  in  Sec.  8^  the  common  law  riparian  rights,  but  also 
provides  that  they  may  be  taken  by  condemnation  proceedings 
by  virtue  of  the  right  of  eminent  domain. 

These  rights  are  sustained  also  by  a  long  line  of  authorities 
of  the  Supreme  Court.  In  the  early  case  of  the  Oregon  Iron 
Co.  vs.  Trullenger^  the  Court  held  that  the  right  to  use 
water  necessarily  implies  a  right  to  dam  and  detain  it.  One 
exercising  this  right  can  only  detaiyi  it.     He  cannot  divert  it. 

Also,  in  the  case  of  Taylor  vs.  Welch, =^  the  Court  held  that 
the  same  rule  applies  to  water  which  flows  in  a  well-defined 
and  constant  stream  in  a  subterranean  channel,  but  not  to 
water  percolating  through  the  soil,  or  even  flowing  through  an 
unknown  and  undefined  channel. 

In  Shively  vs.  Hume^  the  Court  sustained  the  opinion  in 
Taylor  vs.  Welch,  and  added:  "  But  it  may  be  added  that  it 
need  not  be  shown  that  a  stream  of  water  flows  continually, 
it  may  at  times  be  dry,  but  it  must  have  a  well-defined  and 
substantial  existence."  " 

1  sSee  ante  Sec.  499.  Moore   vs.    Willamette  T.  &  L. 

23  Oregon,  1.  Co.,  7  Oreg.   355,  where  the  Court 

3  6  Oregon,  199.  held  that   riparian   rights   extend 

■4  10  Oreo^on,  76.  laterally  into  the  stream,  but   do 

5  See  also  Weiss  vs.  Oregon  I.  &  not    extend    up    and    down     the 

S.   Co.,    13   Oregon,    496;    11    Pac.  stream. 

Rep.  255;  Kaler  vs.  Campbell,  13  See  also  Shook  vs.  Colohan,   12 

Ore.  596;  ir    Pac.    Rep.    301;   Mc-  Oreg.  239;  6  Pac.  Rep.  503.      , 

Cann  vs.  Oreg.  Ry.   Co.,   13  Oreg. 

455;  II  Pac.  Rep.  236. 


CHAPTER  XXI. 
Idaho. 


I.    SUBJECT   TREATED    IN    GEN- 
ERAL. 
Section. — 

509.  Particular   features  of  State. 

510.  Irrigation  in  State. 

II.    GENERAL   STATUTORY  ENACT- 
MENTS. 

511.  Water  rights  in  general. 

512.  Same. — Prior  appropriations. 

—  Construction     of     above 
statutes. 


Section. — 

513.  Right  of  way  for  ditches. 

State  control  of  distribution 

for  irrigation. 
Criticism     of     the    laws     of 
Idaho. 

516.  Future  laws  of  Idaho. — Con- 

stitutional provisions. 

517.  Riparian  rights  in  Idaho. 


514- 


515- 


I.  Subject  Treated  in  Oeueral. 

§  501).  Particular  Features  of  State.— The  topography  of 
Idaho,  in  its  broad  features,  consists  of  a  great  range  of 
mountains  extending  in  a  northwesterly  and  southeasterly  di- 
rection, and  sending  off  spurs  toward  the  west.  The  rivers 
which  flow  from  the  high  mountains  of  the  west  on  reaching 
the  plains  have  cut  for  themselves  deep  channels,  and  often 
disappear  into  narrow  gorges  or  deep  canyons,  continuing  on 
their  way  to  the  sea  at  a  depth  from  two  himdred  to  five  hun- 
dred feet  or  more  beneath  the  general  level  of  the  plains. 
This  condition  of  things  offers  an  obstacle  to  the  complete 
agricultural  development  of  the  State,  which  can  only  be 
overcome  by  the  exercise  of  great  engineering  feats.  The 
water  supply  of  Idaho  is  large,  but  unfortunately  the  pecu- 
liarities of  the  topography  of  the  State  render  it  impossible  to 
utilize  the  whole  of  the  water,  since  a  large  portion  of  it  is 
below  the  general  level  of  agricultural  lands.  The  Great 
Plains,  consisting  for  the  most  part  of  lava,  contain   in   the 


680  IDAHO.  [§  509-511 

aggregate  man}-  hundreds  of  thousands  of  acres  of  land 
which  by  the  application  of  water  may  be  rendered  wonder- 
fully productive. 

§  510.  Irrigation  in  State. — From  the  fact  that  consider- 
able capital  is  required  to  divert  the  waters  of  the  principal 
rivers  of  the  State  from  their  deep  channels,  the  irrigators  in 
the  past  have  been  confined  almost  exclusively  to  those  locali- 
ties where  streams  of  moderate  size  flow  from  the  foot  hills 
into  the  valleys.  Here  small  ditches  have  been  dug  running 
for  a  few  miles  along  the  river  as  far  away  from  it  as  the  con- 
tour of  the  ground  will  allow.  The  early  settlers  usually 
constructed  very  small  ditches,  which  increased  in  size  with 
the  population.  The  methods  of  agriculture  in  the  State  and 
the  practice  of  irrigation  are  governed  to  a  certain  extent  by 
the  distribution  of  the  rainfall.  But  a  great  deal  of  the 
water  throughout  the  State  is  already  taken  up,  and  water 
storage  is  becoming  of  the  utmost  importance.  Enterprises 
are  being  projected  for  utilizing  the  waters  of  the  large  rivers 
by  bringing  them  out  upon  the  high  plains  through  which 
they  flow. 

11.  Oeneral  Statutory  Enactments. 

§511.  Water  Rights  in  General.— On  February  lo,  i88i, 
there  was  approved  an  Act  governing  water  rights  in  general, 
which  has  been  embodied  in  the  revised  statutes  of  Idaho. ^ 

Sees.  3155  to  3167  provide  that  a  right-of-way  may  be 
acquired  by  appropriation  for  beneficial  purposes;  that  the 
point  of  diversion  may  be  changed;  that  water  may  be  turned 
into  and  be  conveyed  by  the  natural  channels;  that  as  between 
appropriators  the  one  first  in  time  i's  the  first  in  right;  that 
notice  of  appropriation  must  be  posted  in  a  conspicuous  place 
at  the  point  of  intended  diversion,  and  be  recorded  in  the 
oSice  of  the  Recorder  of  the  county  in  which  it  is  posted; 
that  within  sixty  days  after  posting  notice  the  claimant  must 
commence  the  construction  of  the  works  to  divert  the  water, 
and    "  must    prosecute    the    work    diligently    and    uninter- 

1  Rev.  Stat.  Idaho,  1887,  Sec.  3155-3205. 


§511,512]  IDAHO.  681 

ruptedly  to  completion,  unless  temporarily  interrupted  by 
snow  or  rain ;  ' '  that  by  ' '  completion  ' '  is  meant  conducting- 
the  water  to  place  of  intended  use;  that  by  compliance  with 
the  above  rules  the  right  to  use  the  water  relates  back  to  the 
time  the  notice  was  posted,  but  a  failure  to  comply  with  such 
rules  deprives  the  claimant  of  the  right  to  the  use  of  the 
water  as  against  a  subsequent  claimant  who  complies  there- 
with, except  that  "  all  ditches,  canals  and  other  works  here- 
tofore made,  constructed  or  provided,  by  means  of  which 
waters  of  any  stream  have  been  diverted  and  applied  to  any 
beneficial  use,  muse  be  taken  to  have  secured  the  right  to  the 
waters  claimed,  to  the  extent  of  the  quantity  of  which  said 
works  are  capable  of  conducting  and  not  exceeding  the  quan- 
tity claimed,  without  regard  to  or  compliance  with  the  require- 
ments of  this  chapter." 

§512.  Same. — Prior  Approprijitioii. — Construction  of 
al)0ve  Statutes. — It  is  held  by  the  Supreme  Court  of  Idaho, 
relative  to  the  provision  of  the  statute,  "as  between  appro- 
priators,  the  one  first  in  time  is  the  first  in  right,"  that  the 
prior  appropriation  of  all  the  waters  of  a  stream  applied  to  a 
useful  purpose  gives  the  better  right  to  the  tributaries  and  all 
direct  and  immediate  sources  of  supply  of  the  stream;  and 
when  this  right  by  appropriation  has  once  vested  it  must  be 
protected  and  upheld.^  The  Court  also  construed  this  section 
of  the  statutes  in  question  in  the  case  of  Hilman  vs.  Hard- 
wick  ^  as  meaning  that  one  who  with  his  grantors  first  appro- 
priated all  the  waters  of  a  certain  stream  and  has  continuall}- 
used  the  same  to  irrigate  the  lands  owned  by  him  is  entitled 
to  all  of  the  waters  to  the  extent  of  his  appropriation,  neces- 
sary to  the  proper  irrigation  of  his  lands  as  against  all  subse- 
quent appropriators  .-^ 

Upon  the  question  of  reasonable  diligence  it   was  held  in 
the  case  of  Conant  vs.  Jones*  that  appropriators  of  water  for 

1  Malad  Valley  Irr.  Co.  vs.  Camp-  vs.  Barrack,  (Idaho)  29   Pac.   Rep. 
bell,  (Idaho)  18  Pac.  Rep.  52.  42;  Drake  vs.  Earhart,  (Idaho)  23 

2  (Idaho.)     28  Pac.  Rep.  438.  Pac.  Rep.  541. 

3  See  also  Kirk  vs.  Bartholomew  ,  ^  (Idaho.)     -^2  Pac.  Rep.  250. 
(Idaho)  29  Pac.    Rep.   40;  Gearson 


682  IDAHO.  [§  512, 513 

irrigation  purposes,  after  completing  their  works  for  diversion 
and  conducting  the  water  to  the  point  of  intended  use,  have 
a  reasonable  time  in  which  to  apply  it;  that  they  may  add  to 
the  acreage  of  cultivated  land  from  year  to  year  and  apply 
the  same  as  their  necessities  demand  or  as  their  abilities  ma3^ 
permit  until  they  have  put  to  beneficial  use  all  the  water  to 
the  full  extent  of  their  appropriation. 


§513.  Ri;2:lit  of  Way  for  Bitches.  —  Sees.  3180  to  3190 
provide:  All  persons,  companies  and  corporations  owning 
or  claiming  any  land  situated  on  the  bank  or  in  the  vicinity 
of  any  stream  are  entitled  to  the  use  of  waters  of  such 
stream  for  the  purpose  of  irrigating  the  land  so  held  or  claimed 
to  be  held. 

Thej'  also  provide  that  owners  of  land  are  entitled  to  a 
right-of-way  through  the  lands  of  others  for  their  ditches  con- 
structed for  the  purpose  of  irrigation.  Condemnation  pro- 
ceedings are  provided  in  case  the  ditch-owners  and  the  land- 
owners cannot  agree  upon  the  compensation  to  the  land- 
owners for  this  right  of  way,  that  a  petition  must  be  presented 
to  the  County  Commissioners  setting  up  the  facts,  after  which 
appraisers  of  the  land  are  to  be  appointed  by  the  Commis- 
sioners, who  shall  hear  the  proofs  in  the  premises  and  certify 
the  compensation  which  in  their  judgment  is  just  and  proper. 
Such  certificate  must  then  be  recorded  in  the  oflBce  of  the 
County  Recorder,  and  "upon  the  payment  of  the  compensa- 
tion and  damages,  if  any,  or  the  tender  thereof  to  the  proper 
parties,  or  in  the  absence  thereof  of  such  parties  from  the 
county  then  upon  deposit  of  the  amount  in  the  county  treas- 
ury to  the  credit  of  the  said  part}',  the  person,  company  or  cor- 
poration, petitioners,  have  the  right  of  entry  upon  and  of  way 
for  the  proposed  ditch,  canal  or  other  works."  They  provide 
that  the  ditches  must  be  kept  in  good  repair;  that  prior  rights 
must  not  be  injured  or  impaired;  that  the  owners  of  such 
ditches  must  furnish  water  to  customers  upon  the  payment  of 
the  usual  and  customary  rates  for  the  use  of  the  water;  that 
no  person  is  entitled  under  any  circumstances  to  use  more 
water    than    good  husbandry   requires   for  the  crop  that   he 


§513-515]  IDAHO.  683 

cultivates,  and  if  any  person  uses  an  excessive  supply  of 
water  he  is  liable  for  damages  sustained  thereby. 

§  514.   State   Control    of  Distribution  for    Irrigation. — 

Besides  the  above  law  on  February  7,  1881,  there  was 
approved  an  Act  regulating  the  distribution  of  water  for  the 
purposes  of  irrigation.^ 

This  Act  provides  that  the  inhabitants  in  any  vicinity  who 
use  the  waters  of  a  certain  stream  for  the  purpose  of  irriga- 
tion constitute  a  water  district,  and  a  majority  of  such  inhab- 
itants having  such  common  rights  may  annually  elect  a 
Water  Master,  whose  duty  it  will  be  to  superintend  the  dis- 
tribution of  such  waters  among  those  having  the  right  to  its 
use.  The  duties  of  the  Water  Master  are:  He  must  regulate 
the  distribution  of  water  among  the  several  ditches  according 
to  their  respective  rights  and  necessities;  provided,  that  vested 
rights  of  individuals,  companies  or  corporations  to  the  use 
and  control  of  water  must  not  be  injured  or  impaired. 

§  515.  Criticism  of  the  Laws  of  Idaho.— The  laws  in  the 
State  of  Idaho  regarding  the  control  of  the  waters  and  the 
rights  of  different  irrigators  depending  upon  any  one  stream 
cannot  be  called  the  most  satisfactory.  They  do  not  appear 
to  guard  the  rights  of  individuals.  There  is  general  com- 
plaint that  no  one  can  enjoy  the  general  ownership  of  water 
sufficient  to  render  his  farm  productive  until  his  rights  have 
been  tested  by  law  suits,  often  of  the  most  expensive  and 
protracted  nature.  Idaho  has  not  kept  up  with  the  majority 
of  the  other  States  in  the  arid  region  in  her  legislation  upon 
the  subject  of  irrigation.  No  recent  enactment  has  been 
made,  and  there  are  many  points  of  weakness  in  the  present 
statutes  which  react  injuriously  upon  the  agricultural  inter- 
ests. The  situation  is  in  many  localities  complicated  by  the 
rapid  growth  of  the  new  and  improved  systems  of  irrigation 
by  means  of  the  construction  of  large  ditches;  the  rights  of 
such  later  comers  to  the  water  being,  however,  secondary  to 
those  of  the  older  ditch  owners.     And,  as  is  usually  the  case 

'  See  Rev.  vStat.  1887,  Sees.  3200-3205. 


684  IDAHO.  [§  515, 516 

where  owners  of  large  canals  and  owners  of  small  ditches  take 
water  from  the  same  source,  there  is  considerable  complaint 
from  the  farmers.  If  one  owns  a  small  ditch  he  is  in  constant 
fear  of  being  deprived  of  his  share  of  the  water  in  the  river 
by  the  larger,  better  built  canals.  And  on  the  other  hand 
the  farmer  who  obtains  water  from  the  canal  companj^  com- 
plains of  the  excessive  rates  charged  and  of  the  unsatisfactory 
manner  in  which  the  water  is  furnished. 

§  516.  Future  Laws  of  Idaho. — Constitutional  Provi- 
sions.— It  is  quite  evident  that  not  manj'  3'ears  will  elapse 
before  the  State  of  Idaho  must  remodel  her  laws  upon  the 
subject  of  irrigation,  so  that  the  rights  of  all  parties  inter- 
ested in  the  waters  of  the  State  will  be  better  protected  than 
at  present. 

Tending  toward  that  end,  when  the  new  State  Constitution 
was  adopted,  Article  XV.  contained  the  following: 

"Section  1.  The  use  of  all  waters  now  appropriated,  or 
that  may  hereafter  be  appropriated,  for  sale,  rental  or  distri- 
bution; also  of  all  water  originally  appropriated  for  private 
use,  but  which  after  such  appropriation  has  heretofore  been, 
or  may  hereafter  be,  sold,  rented  or  distributed,  is  hereby  de- 
clared to  be  a  public  use,  and  subject  to  the  regulation  and 
control  of  the  State  in  the  manner  prescribed  by  law. 

"  Sec.  2.  The  right  to  collect  rates  or  compensation  for  the 
use  of  water  supplied  to  any  county,  city  or  town  or  water 
district,  or  the  inhabitants  thereof,  is  a  franchise,  and  cannot 
be  exercised  except  b}'  authority  of  and  in  the  manner  pre- 
scribed by  law. 

"  Sec.  3.  The  right  to  divert  and  appropriate  the  unappro- 
priated waters  of  an}^  natural  stream  to  beneficial  uses  shall 
never  be  denied.  Priority  of  appropriation  shall  give  the 
better  right  as  between  those  using  the  water;  but  when  the 
waters  of  any  natural  stream  are  not  suSicient  for  the  service 
of  all  those  desiring  the  use  of  the  same  those  using  the  waters 
for  domestic  purposes  shall  (subject  to  such  limitations  as 
maj''  be  prescribed  b}'  law)  have  the  preference  over  those 
claiming  for  an}-  other  purpose;  and  those  using  the  water  for 
agricultural  purposes  shall  have  preference  over  those  using 


§  516]  IDAHO.  (585 

the  same  for  manufacturing  purposes.  And  in  any  organized 
mining  districts  those  using  the  water  for  mining  purposes, 
or  milling  purposes  connected  with  mining,  shall  have  prefer- 
ence over  those  using  the  same  for  manufacturing  or  agricul- 
tural purposes.  But  the  usage  by  such  subsequent  appro- 
priators  shall  be  subject  to  such  provisions  of  law  regulating 
the  taking  of  private  property  for  public  or  private  use  as 
are  referred  to  in  Section  14,  of  Article  I.,  of  this  Constitu- 
tion. 

"  Sec.  4.  Whenever  any  water  shall  have  been  or  shall  be 
appropriated  or  used  for  agricultural  purposes  under  a  sale, 
rental  or  distribution  thereof,  such  sale,  rental  or  distribution 
shall  be  deemed  an  exclusive  dedication  to  such  use;  and 
whenever  such  water  so  dedicated  shall  have  once  been  sold, 
rented  or  distributed  to  any  person  who  has  settled  upon  or 
improved  land  for  agricultural  purposes,  with  the  view  of  re- 
ceiving the  benefit  of  such  water  under  such  dedication,  such 
person,  his  heirs,  executors,  administrators,  successors  or  as- 
signs shall  not  thereafter  without  his  consent  be  deprived  of 
the  annual  use  of  the  same  when  needed  for  domestic  purposes 
or  to  irrigate  the  land  so  settled  upon  or  improved  upon  pay- 
ment therefor  and  compliance  with  such  equitable  terms  and 
conditions  as  to  the  quantity  used  and  the  times  of  use,  as 
may  be  prescribed  by  law. 

"  Sec.  5.  Whenever  more  than  one  person  has  settled  upon 
or  improved  land  with  a  view  to  receiving  water  for  agricul- 
tural purposes  under  a  sale,  rental  or  distribution  thereof,  as 
in  the  last  preceding  section  of  this  article  provided,  as  among 
such  persons  priority  in  time  shall  give  superiority  of  right  to 
the  use  of  such  water  in  the  numerical  order  of  such  settle- 
ments or  improvements;  but  whenever  the  supply  of  such 
water  shall  not  be  sufficient  to  meet  the  demands  of  all  those 
desiring  to  use  the  same  such  priority  of  right  shall  be  subject 
to  such  reasonable  limitations  as  to  the  quantity  of  water 
used  and  times  of  use  as  the  Legislature  having  due  regard 
both  to  such  priority  of  right  and  the  necessities  of  those 
subsequent  in  time  of  settlement  or  improvement  may  by  law 
prescribe. 

"  Sec.  6.  The  Legislature  shall  provide  by  law  the  manner 


686  IDAHO.  [j^  516, 517 

in  which  reasonable  maximum  rates  may  be  established  to  be 
charged  for  the  use  of  water  sold,  rented  or  distributed  for  any 
useful  or  beneficial  purposes." 

§  517.  Riparian  Rights  in  Idaho. — The  common  law 
riparian  rights  may  be  considered,  from  the  foregoing  abstract 
of  the  statutory  laws  of  the  State  and  the  provisions  of  the 
Constitution,  to  be  entirely  ignored  and  abolished.  The  Con- 
stitution, as  we  have  seen,  provides:  "The  right  to  divert 
and  appropriate  the  unappropriated  waters  of  any  stream  for 
beneficial  purposes  shall  never  be  denied." 


CHAPTER  XXII. 
Nebraska. 


I.      SUBJECT  TREATED   IN 
GENERAL. 
Section. — 

518.  Particular  features  of  vState. 
— Irrigation  in  State. 


II.      GENERAL  STATUTORY 

ENACTMENTS. 
Sectioa. — 

519.  Water-rights  in  general. 

520.  Right-of-way  for  ditches. 

521.  Criticism  of  above  law. — Ri- 

parian rights  in  Nebraska. 


I.    Subject  Treated  in  General. 
§  518.    Particular    Features  of  State.  —  Irrigation   in 

«^tate.— The  particular  features  of  the  State  of  Nebraska 
have  been  practically  described  under  the  same  subject  in 
our  chapter  upon  the  State  of  Kansas. ^ 

The  practical  application  of  the  art  in  Nebraska  has  had  a 
great  impetus  in  that  State  since  the  very  dry  season  of  1890. 
Within  the  State  there  is  much  excellent  land  ready  for  irri- 
gation, and  the  water  supply  is  there  to  serve  it,  and  may  be 
brought  upon  the  land  by  short  and  cheap  ditches.  It  will 
not  be  many  years  before  the  keen  logic  of  profit  and  loss 
will  drive  home  the  conviction  that  it  is  an  enormous  and 
inexcusable  waste  to  let  the  copious  volume  of  the  rivers  of 
that  State,  laden  with  enriching  silt,  run  away  unused  to  the 
sea.  Although  Nebraska  is  properly  classified  among  the  sub- 
humid  States,  it  is  coming  each  year  to  be  recognized  there, 
as  in  the  State  of  Kansas,  that  the  practice  of  irrigation  will 
do  away  with  such  years  of  drought  as  have  been  experienced 
by  those  two  States  in  the  past. 

II.    Statutory  Enactments. 

§519.     Water  lliglits  in  General.— On    March   27,   1889, 
there  went  into  effect  a  law  in  Nebraska  to  provide  for  water 


1  See  :\nte  Sec.  425. 


t)88  NEBRASKA.  [§519 

rights  and  irrigation,  and  to  regulate  the  use  of  water  for 
agricultural  and  manufacturing  purposes,  also  providing  for 
a  right-of-way  for  ditches.^ 

Section  2032  provides:  "The  right  of  the  use  of  running 
water  flowing  in  a  river  or  stream  or  down  a  can^^on  or  ravine 
may  be  acquired  by  appropriation  by  any  person  or  persons, 
company,  or  corporation,  organized  under  the  laws  of  the  State 
of  Nebraska;  provided,  that  in  all  streams  not  more  than  fifty 
feet  in  width  the  rights  of  riparian  proprietors  are  not  affected 
by  the  provisions  of  this  Act." 

The  Act  provides  that  the  appropriation  must  be  for  a  ben- 
eficial purpose,  and  when  the  appropriator  ceases  to  use  it  for 
that  purpose  the  right  ceases;  no  tract  of  land  shall  be  crossed 
by  more  than  one  ditch  without  the  written  consent  of  the 
owner  if  the  first  ditch  can  be  made  to  answer  the  purpose  for 
which  the  second  is  desired;  that  all  ditches,  canals  and  lat- 
erals used  for  the  purpose  of  irrigation  shall  be  exempt  from 
taxation;  the  place  of  diversion  may  be  changed  if  others  are 
not  injured  thereby;  the  water  appropriated  shall  not  be 
turned  or  permitted  to  run  in  the  channel  of  any  other  river 
or  stream  than  that  from  which  it  is  taken;  as  between  appro- 
priators,  the  one  first  in  time  is  first  in  right;  that  parties 
desiring  to  appropriate  water  must  post  a  notice  in  a  conspic- 
uous place  at  the  point  of  diversion  setting  up  the  facts  of  the 
diversion,  a  copy  of  which  notice  must  be  recorded  in  the 
ofiice  of  the  County  Clerk  in  the  county  in  which  it  was 
posted;  within  sixty  days  after  the  notice  is  posted  the  con- 
struction of  the  works  must  be  commenced  and  must  be  pros- 
ecuted diligently  and  uninterruptedly  to  completion,  unless 
temporarily  interrupted  by  snow  or  rain;  that  by  completion 
is  meant  conducting  the  water  to  the  place  of  intended  use; 
that  by  compliance  with  these  rules  the  claimant's  right  to 
the  use  of  water  relates  back  to  the  time  of  posting  notice, 
but  a  failure  to  comply  with  the  rules  deprives  the  claimant 
of  a  right  to  the  use  of  the  water  as  against  a  subsequent  party 
who  complies  with  it. 

1  Consolidated  Stat,  of  Neb.  1S91,  Sec.  2032-2061. 


§  520,  521]  NEBRASKA.  689 

§520.  Riglit  of  Way  for  Ditches.  —  Sees.    2047   to   2o5i 
provide  that  all  parties  owning  land  in  the  vicinity  of  any 
stream  are  entitled  to  the  use  of  the  waters  of  such  stream 
for  the  purpose  of  irrigating  the  land,  and  are  also  entitled  to 
a  right-of-way  for  the  ditch  or  canal   through  the  lands  of 
others.     In  case  of  refusal  of  the  owners  of  lands  to  allow  the 
passage  of  the  ditch  the  parties  desiring  the  right-of-way  may 
present  to  the  County  Judge  of  the  county  a  petition  setting 
up  the  facts,  and  praying  for  the  appointment  of  five  apprais- 
ers to  ascertain  the  compensation  to  be  made  to  such  owners. 
Upon  the  filing  of  the  petition  the  County  Judge  must  give 
notice  of  the  time  and  place  of  the  hearing,  why  said  petition 
should  not  be  granted,  and  unless  good  cause  be  shown  by 
parties  adversely  interested  why  the  petition  should  be  denied 
the  petition  must  be  granted.     The  duties  of  the  appraisers 
are  then  specifically  prescribed  and  right  of  appeal  is  granted 
from  their  judgment  to  the  District  Court  of  the  County. 

Sec.  2055  declares  that  canals  constructed  for  irrigating  or 
water  power  purposes  are  declared  to  be  works  of  internal 
improvement  and  all  laws  applicable  to  works  of  internal 
improvement  are  declared  to  be  applicable  to  such  canals. 
The  right  to  the  use  of  water  from  ditches  constructed  for  the 
purpose  of  selling  the  water  thereof  for  irrigating  purposes 
is  prescribed  as  follows: 

"First.  All  persons  through  whose  lands  such  ditch  or 
canal  runs  are  entitled  to  the  use  of  the  waters  thereof  in  the 
order  of  their  location  along  the  line  of  said  ditch  or  canal. 

"Second.  After  those  through  whose  lands  the  ditch  or 
canal  runs  those  upon  either  side  of  the  line  of  the  ditch  or 
canal  are  entitled  to  the  use  of  the  waters  thereof;  those 
equally  distant  from  the  line  of  said  ditch  or  canal  are  entitled 
to  priority  in  the  order  of  their  location  along  the  line  of  said 
ditch  or  canal;  provided,  that  in  times  of  scarcity  of  water  the 
same  shall  be  equally  distributed  to  the  consumers  thereof." 

§  521.  Crltiejsiii  of  Above  Liw.— llipiriiiTi  Ul^hts  in 
Nebraska.— It  will  be  quite  apparent  from  a  study  of  the  law, 
of  which  the  above  is  an  abstract,  that  Nebraska  is  one  of  the 
States   of  the    semi-arid   region    that    has    not  kept    in    line 


690  NEBRASKA.  [§  521 

with  her  sister  States  regarding  her  law  upon  the  subject  of 
irrigation.  No  measure  of  public  policy  is  more  important  to 
that  State  than  an  enactment  of  a  code  of  irrigation  laws 
which  shall  provide  a  certain,  cheap,  speedy  and  equitable 
method  of  settling  disputed  water-rights. 

Nebraska  is  one  of  the  States  wherein  the  common  law 
riparian  rights  are  expressly  recognized  by  the  statutes,  the 
provision  in  Sec.  2032  of  the  statutes,  "  That  in  all  streams 
not  more  than  fifty  feet  in  width  the  rights  of  the  riparian 
proprietors  are  not  effected  by  this  Act,"  is  a  great  obstruc- 
tion placed  in  the  way  of  those  desiring  to  appropriate  the 
water  of  the  natural  streams  for  the  purpose  of  irrigation,  as 
one  riparian  proprietor  can  prevent  the  appropriation  from 
any  stream  not  more  than  fifty  feet  in  width.  It  is  the  ex- 
perience of  all  irrigating  countries  that  it  is  the  waters  of  the 
smaller  streams  that  are  most  used  for  this  purpose,  from  the 
fact  that  they  are  the  more  easily  diverted  and  conducted 
upon  the  land. 


CHAPTER  XXIII. 
Texas. 

I.  SUBJECT  TREATED    IN  |    Section.— 

'    S24.  Corporations. — Powers  of. 
GENERAL.  o    ,        r  ^  t.         h.- 

Section.—  525-  Sale  of  water. — Penalties. 

522.  Particular   features.—  Irriga-       526.  Lien  upon  crops. 

tion  in  State.  I    52?-  Court    Decisions    upholding 

the  right  of  irrigation. 

II.  GENERAL  STATUTORY  „       •  X         ^        ^-  c     u 

528.  .bame.-Construction  or  above 

ENACTMENTS.  statutes. 

523.  Irrigation  laws.  529-  Riparian  rights  in  Texas. 

I.    Subject  Treated  iu  General. 

§522.     Particular    Features.  —  Irrigation    in    State.— 

Strictly  speaking,  the  western  part  of  Texas  is  included 
within  the  arid  region,  but  since  the  greater  portion  of  that 
State  is  sub-humid  the  State  may  be  properly  placed  in  that 
class.  In  some  portions  of  Texas  irrigation  is  indispensable, 
while  in  others  it  is  found  to  be  a  very  useful  adjunct  to  the 
rainfall  for  the  culture  of  crops  of  all  kinds,  including  that  of 
cotton.  The  soil  in  general  is  fertile  and  the  water  easily 
accessible.  The  art  of  irrigation  being  absolutely  essential 
in  the  arid  portion  of  the  State  is  more  fully  appreciated 
there.  But  in  the  semi-humid  region  of  Central  Texas,  where 
the  land  has  considerable  value  without  irrigation,  the  value 
of  the  water  of  the  natural  streams,  while  none  the  less  great, 
is  not  so  fully  appreciated,  although  irrigation  would  double 
the  already  munificent  productiveness  of  the  soil. 

II.    Statutory  Enactments. 

§523.  lrrii?ation  Laws.— Texas  as  a  State,  with  New 
Mexico  and  Arizona  as  Territories,  come  under  the  affirm- 
ative declaration  of  Spanish  and  Mexican  laws,  which  were  in 
force  before  those  jurisdictions  passed   under  the  control  of 


692  TEXAS.  [§  523 

the  United  States.  But  those  laws  have  been  supplemented 
by  recent  statutory  legislation.  In  1889  the  Legislature  of 
Texas  passed  "An  Act  to  encourage  irrigation  and  to  provide 
for  the  acquisition  of  the  right  to  the  use  of  the  water  for  the 
construction  and  maintenance  of  canals,  ditches,  flumes, 
reservoirs  and  wells  for  irrigation,  and  for  mining,  milling 
and  stock  raising  in  the  arid  districts  of  Texas.  "^ 

Section  i  of  the  said  Act  provides:  "  That  the  unappropri- 
ated waters  of  every  river  or  natural  stream  within  the  arid 
portion  of  the  State  of  Texas  in  which,  by  reason  of  the  insuf- 
ficient rainfall,  irrigatio7i  is  necessary  for  agricultural  pur- 
poses, may  be  diverted  from  its  natural  channel  for  irrigation, 
domestic  and  other  beneficial  uses;  provided,  that  said  water 
shall  not  be  diverted  so  as  to  deprive  any  person  who  claims, 
owns  or  holds  a  possessory  right  or  title  to  any  land  lying 
along  the  banks  or  margin  of  any  river  or  natural  stream  of 
the  use  of  water  thereof  for  his  own  domestic  use." 

"Sec.  2.  That  the  unappropriated  waters  of  ever}'  river  or 
natural  stream  Tvitlmi  the  arid  portions  of  the  State,  as  de- 
scribed in  the  preceding  section  of  this  Act,  are  hereby 
declared  to  be  the  property  of  the  public,  and  may  be  acquired 
by  appropriation  for  the  uses  and  purposes  hereinafter  pro- 
vided." The  Act  provides  that  the  appropriation  must  be 
made  for  the  purposes  named  in  this  Act,  and  when  the  appro- 
priator  ceases  to  use  it  for  such  purpose  the  right  ceases. 

"  Sec.  4.  As  between  appropriators,  the  first  in  time  is  the 
one  first  in  right  to  such  quantity  of  the  water  only  as  is 
reasonably  sufficient  and  necessary  to  irrigate  the  land  sus- 
ceptible of  irrigation  on  either  side  of  the  ditch  or  canal." 

Sec.  5,  as  amended  in  1893,  provides  that  within  ninety 
days  after  the  commencement  a  sworn  statement  containing 
all  particulars  of  the  appropriation  must  be  filed  with  the 
County  Clerk,  together  with  a  map  .showing  the  route  of 
said  ditch  or  canal. ^ 

Sees.  6  and  7  provide  that  work  must  be  begun  within 
ninety  days  after  filing  of  statement  and  must  be  prosecuted 
diligently  and  continuously  to  completion,  which  is  defined 

1  .See  Stat.  1889.  p.   100.      2  See  Stat.  189:,,  p.  47. 


§  523-526J  TEXAS.  693 

to  be  the  "  conducting  of  the  water  in  the  main  canal  to  the 
place  of  intended  use." 

Sec.  8  provides  that  by  compliance  with  the  preceding  rule 
the  claimant's  right  to  the  use  of  water  relates  back  to  the 
time  when  the  work  of  construction  was  commenced. 

§  521.  Corporations.— Powers  of.— Sec.  lo.  Corporations 
may  be  formed  under  the  provisions  of  the  Act  for  the  pur- 
pose of  constructing  and  maintaining  ditches  and  other  works 
necessary,  and  furnishing  water  to  all  persons  entitled  to  the 
same  for  irrigation  and  domestic  purposes.  All  persons  own- 
ing land  contiguous  to  any  such  ditch,  and  who  shall  have 
secured  a  right  to  the  water  in  the  same,  shall  be  entitled  to 
be  supplied  with  water  from  such  ditch  for  the  purpose  of 
irrigation  of  such  land  and  domestic  uses. 

Sec.  II.  All  corporations  formed  for  the  purpose  of  irriga- 
tion as  provided  in  the  Act  are  granted  a  right  of  way  not  to 
exceed  loo  feet  in  width  over  all  lands  of  the  State.  Also, 
any  such  corporation  may  obtain  the  right  over  private  lands 
by  condemnation  proceedings,  as  in  the  case  of  the  same  pro- 
ceedings by  railroads. 

§525.  Sale  of  Water.— Penalties.— Sec ;  12.  All  surplus 
water  not  used  or  disposed  of  as  provided  for  in  the  preceding 
sections  of  this  Act  shall  be  conducted  back  to  the  stream 
from  which  it  was  taken.  The  section  also  provides  for  the 
measurement  of  water  by  inches,  feet  or  fractional  portion  of 
the  whole  supply,  or  distribution  by  the  hour  or  acre  system. 

Sec.  14.  "  Any  person  who  shall  wilfully  or  through  gross 
negligence  injure  any  irrigating  canal  or  its  appurtenance, 
wells  or  reservoirs,  or  who  shall  waste  the  waters  thereof,  or 
shall  take  the  water  therefrom  without  authority,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  for  each  offense  shall  be 
liable  for  a  fine  not  exceeding  five  hundred  dollars." 

§  52(>.  Lien  Upon  Crops. — A  supplementary  section  to  the 
above  Act  was  also  added  in  1893.^  The  section  provides: 
*'  Every   person,  corporation  or  association  of  persons  which 

1  See  Stat.  1893,  p.  47,  Sec.  2. 


694  TEXAS.  [§  526-528 

has  heretofore  constructed  or  which  may  hereafter  construct 
an^^  ditch,  canal  or  reservoir  for  the  purpose  of  irrigation  and 
who  shall  lease  or  rent  the  water  from  said  ditch,  canal  or 
reservoir  to  any  person,  persons  or  association  of  persons  or 
corporation  owning  any  lands  subject  to  irrigation  from  such 
ditch,  canal  or  reservoir  such  person,  corporation  or  associa- 
tion of  persons  owning  such  ditch,  canal  or  reservoir  shall 
have  a  preference  lien,  upon  the  crop  or  crops  raised  upon  the 
land  thus  irrigated  under  such  lease  or  contract." 

§  527.  (Jourt  Decisions  Lpliokling  the  Ki!?ht  of  Irrigation. 

The  Supreme  Court  of  the  State  of  Texas  has  long  recognized 
the  right  of  appropriation  for  irrigation  purposes.  In  the  case 
of  Tolle  vs.  Correth,^  decided  in  i868,  the  Supreme  Court 
even  then  recognized  this  right,  and  Mr.  Chief  Justice  Mor- 
rell  in  rendering  this  opinion  said:  "We  historically  know 
that  the  lands  in  the  western  portion  of  the  State  are  com- 
paratively, in  some  seasons,  useless  unless  the}'  are  irrigated. 
*  *  *  The  authorities  cited  from  the  distinguished  Courts 
of  New  York,  Massachusetts  and  England  are  founded  on  the 
principle  or  maxim,  '  The  water  runs,  let  it  run.'  '  Every 
one  has  the  right  to  have  the  advantage  of  a  flow  of  water  in 
his  land  without  diminution  or  alteration.'  A  moment's 
reflection  will  enable  any  one  to  see  the  propriety  of  these 
maxims,  where  water  is  useful  only  in  its  flow,  and  is  sub- 
servient to  mechanical  or  manufacturing  purposes.  But  in  a 
country  or  State  where  water  is  useful  for  agricultural  pur- 
poses, and  where  the  sovereign  power  grants  for  a  nominal 
consideration  water  for  the  purpose  of  irrigation  these  max- 
ims do  not  apply;  instead  thereof  we  must  substitute,  '  Water 
irrigates,  and  let  it  irrigate.'  "  - 

§528.    Same. — Construction   of  Above  Statute. — In  the 

very  recent  case  of  McGhee  Irrigating  Ditch  Co.  vs.  Hudson  ^ 
the  above  quoted  statute  was  attacked  as  to  its  validity  on  the 

1  31  Texas,  362.  310;    Baker  vs.   Brown,  55  Texas, 

2  See  also  upon   subject  case  of       57. 

i-lemingvs.  Davis,  37  Texas,  173;  ><  Texas,  21  S.  W.  Rep.  175. 

Rhodes  vs.  Whitehead,  27  Texas, 


§  528,  'j29]  TEXAS.  695 

ground  of  uncertainty.  But  the  Supreme  Court,  in  uphold- 
ing the  validity  of  the  statute,  said:  "  We  think  the  la^^ 
should  stand  as  sufficiently  definite  and  certain  because  the 
arid  portion  of  the  State  to  which  the  Act  shall  apply  is 
indicated  and  defined  by  the  first  and  second  sections  of  the 
law.i  *  *  *  ^g  think  the  benefits  of  this  Act  are 
limited  to  that  arid  portion  of  the  State  where  rainfall  is 
insufficient  and  irrigation  is  necessary  for  agricultural  pur- 
poses; and  a  party  seeking  its  benefits  must  show  this  condition 
of  things." 

§  529.  Riparian  Rights  in  Texas.— Riparian  rights  are 
recognized  and  protected  in  the  State  of  Texas.  The  middle 
of  a  fresh  water  stream  is  the  common  boundary  of  the  land 
owners  on  opposite  sides.  Although  appropriation  of  water 
for  the  purpose  of  irrigation  is  permitted  under  certain  cir- 
cumstances it  is  not  allowed  when  rights  of  riparian  proprie- 
tors are  injuriously  affected  thereby .^ 

1  See  ante  Section  523.  304;  Baker   vs.    Brown,    55  Texas, 

2Mullervs.  Land,  3iTexas,  271;  377;  Fulton  vs.  Frandolig,  63 
Rhodes  vs.  Whitehead,  27  Texas,       Texas,  330. 


CHAPTER    XXIV. 


Arizona. 


I.     SUBJECT   TREATED   IN 
GENERAL. 
Section.— 

530.  Particular  features  of  Terri- 

tory. 

531.  Irrigation  in  Territory. 
II.      GENERAL  STATUTORY 

ENACTMENTS. 

532.  Water- rights  in  general. 


Section. — 

533.  Irrigating    canals    and     ace 

quias. 

534.  Construction  of    canals    and 

acequias. 

535.  Overseers  of  acequias. 

536.  Riparian  rights  in  Atizona. 


I.    Subject  Treated  in  General. 

§  530.  Particular  Features  of  Territory.— Arizona,  the 
oldest  irrigated  region  within  the  limits  of  the  United  States, 
where  ancient  and  ruined  systems  of  irrigating  canals  and 
reservoirs  still  serve  as  models  for  modern  works,  is  to-day 
very  much  interested  in  the  subject  of  irrigation.  The  agri- 
cultural and  irrigable  land  is  situated  in  the  southwestern 
half  of  the  Territory.  We  find  through  Arizona,  from  foot- 
hills to  mountains,  an  annual  average  precipitation  of  from 
twelve  to  twenty-five  inches  of  rainfall,  and  on  the  plains  and 
mesas  of  the  western  and  southern  part  the  very  low  average 
of  from  three  to  twelve  inches.  Hence  it  follows  for  the 
greater  part  of  the  Territory  irrigation  is  practiced  as  an  ab- 
solute necessity  to  successful  farming.  In  the  lower  plains 
the  temperature  is  such  that  crops  will  grow  and  mature  at 
any  season  of  the  year,  provided  there  is  a  sufficient  supply  of 
moisture.  Consequently  in  various  portions  of  the  Territory 
irrigation  is  kept  up  the  entire  year. 


§  531, 532]  ARIZONA.  697 

§  531.  Irrigjitiou  in  Territor.v.— The  acreage  at  present 
under  irrigation  in  Arizona  may  be  regarded  as  approaching 
the  maximum  possible  with  the  present  supply  of  water  and 
the  methods  of  using  it.  All  the  available  water  in  the 
natural  streams  and  lakes  has  been^utilized,  and  any  extended 
area  can  be  brought  under  cultivation  only  by  greater 
economy  in  using  the  existing  supply,  or  by  the  adoption  of 
systems  of  storage  for  the  conservation  of  the  flood  water 
now  annually  running  to  waste.  There  are  a  great  many 
storage  reservoir  sites  in  this  Territory,  and  irrigators  are 
looking  forward  to  this  method  as  the  most  effectual  means  of 
obtaining  relief  from  the  troubles  and  uncertainties  at  present 
existing. 

In  most  cases  water  is  now  applied  by  flooding,  after  the 
custom  established  by  the  Mexicans.  This  method  is  at  best 
an  exceedingly  wasteful  one  where  there  is  such  a  scanty  sup- 
ply of  water;  and  it  has  been  demonstrated  in  many  cases 
where  too  much  water  is  used  that  better  crops  could  be 
matured  by  using  the  water  more  sparingly,  which  would  also 
have  the  effect  of  increasing  the  area  under  cultivation. 

II.  Statutory  Eiiactiueiits. 

§532.  Water  -  Rights  in  General.— Arizona  and  New 
Mexico  may  be  considered  as  constituting  a  sort  of  a  group 
somewhat  separate  and  distinct  from  the  other  commonwealths 
of  the  arid  region  as  regards  the  laws  regulating  water- 
rights.  The  legislation  of  the  two  Territories  is  somewhat 
similar,  and  follows  the  old  Spanish  and  Mexican  laws  upon 
the  subject.  The  fundamental  rule  by  which  the  waters  of 
streams  are  governed  is  to  be  found  in  the  Territorial  Bill 
of  Rights,  and  is  as  follows:  "All  streams,  lakes  and  ponds  of 
water  capable  of  being  used  for  the  purposes  of  navigation 
or  irrigation  are  hereby  declared  to  be  public  property;  and  no 
individual  or  corporation  shall  have  the  right  to  appropriate 
them  exclusively  to  their  ov^'n  private  use  except  under  such 
equitable  regulations  and  restrictions  as  the  Legislature  sHall 
provide  for  that  purpose."  ' 

1  Rev.   vStat.  Arizona,  Sec.  2863. 


698  ARIZONA.  [§  533, 534 

§  533.  Irrigating  Canals  and  Acequias.^  —  The  revised 
statutes  of  Arizona  contain  the  following  upon  the  subject  of 
irrigating  canals: 

Section  3199  provides:  "  All  rivers,  creeks  and  streams  ot 
running  water  in  the  Terrftory  of  Arizona  are  hereby  declared 
public,  and  applicable  to  the  purposes  of  irrigating  and  min- 
ing as  hereinafter  provided." 

"  Sec.  3201.  All  the  inhabitants  of  this  Territory  who  own 
or  possess  arable  and  irrigable  lands  shall  have  the  right  to 
construct  public  or  private  acequias  and  obtain  the  necessarj'^ 
water  for  the  same  from  any  convenient  river,  creek  or  stream 
of  running  water." 

All  owners  of  acequias  may  have  the  right  if  necessary  to 
run  the  same  through  the  lands  of  private  individuals,  and 
the  damages  resulting  to  such  individuals,  on  application  of 
the  party  interested,  shall  be  assessed  by  the  Probate  Judge 
of  the  proper  county  in  a  summary  manner. 

Sec.  3203  declares  that  no  one  may  obstruct  the  irrigation 
of  any  lands  or  fields,  except  by  erecting  mills  and  machinery 
for  raining  purposes  or  for  reduction  of  metals,  as  the  right  to 
irrigate  the  fields  and  arable  lands  shall  be  preferable  to  all 
others. 

Sec.  3204.  Where  reduction  w^orks  or  other  mining  appara- 
tus shall  be  placed  upon  lands  previously  held  for  agricul- 
tural purposes  the  person  or  persons  so  holding  such  lands 
shall  be  entitled  to  remuneration  for  the  damages  caused 
thereby . 

Sec.  3205  provides  that  when  any  ditch  or  acequia  shall 
be  taken  out  for  agricultural  purposes  the  party  so  taking  out 
such  ditch  shall  have  the  exclusive  right  to  the  water,  or  so 
much  thereof  as  shall  be  necessary  for  his  purpose,  and  if  at  any 
time  the  water  so  required  shall  be  taken  for  mining  operations 
the  person  owning  such  water  shall  be  entitled  to  damages. 

§  534.  Construction  of  Canals  and  Acequias. — Sees.  3207 
to  3210  provide  that  all  owners  and  proprietors  of  arable  land 
bordering  upon  or  irrigable  by  any  public  acequia  shall  labor 

1  See  Rev.  Stat.  Arizona,  .Sees.  3199-3226. 


§  534, 535]  ARIZONA.  <59y 

on  such  public  acequia,  whether  such  owners  or  proprietors 
cultivate  the  land  or  not.  Then  follow  provisions  that  all 
persons  interested  in  the  public  acequias,  whether  owners  or 
lessees  of  land,  shall  labor  thereon  in  proportion  to  the  amount 
of  land  owned  or  held  by  them. 

Sec.  3210  provides:  "  That  in  case  a  community  or  people 
desire  to  construct  an  acequia  in  any  part  of  this  Territory 
and  the  persons  desiring  to  construct  the  same  are  the  owners 
or  the  proprietors  of  the  land  upon  which  they  design  con- 
structing said  acequia,  no  one  shall  be  bound  to  pay  damages 
for  such  land,  as  all  persons  interested  in  the  construction  of 
said  acequia  are  to  be  benefited  thereby." 

§535.  Orei-seei-s  of  Acequias.— It  is  provided  that  it  shall 
be  the  duty  of  the  several  Justices  of  the  Peace  in  the  Terri- 
tory to  call  together  in  their  respective  precincts  all  the  owners 
and  proprietors  of  land  irrigated  by  any  public  acequia,  for 
the  purpose  of  electing  one  or  more  overseers  of  said  acequia 
for  the  year.  The  manner  of  conducting  such  election  and 
the  number  of  overseers  shall  be  regulated  by  the  Justices  of 
the  Peace  of  their  respective  precincts,  and  the  only  persons 
entitled  to  vote  at  such  elections  are  the  owners  and  proprie- 
tors of  land  irrigated  by  the  acequia. 

Sec.  3214.  It  is  the  duty  of  the  overseers  to  superintend  the 
opening  and  repairs  of  the  acequias;  to  apportion  the  number 
of  laborers  to  be  furnished  by  the  owners  of  lands;  to  regu- 
late them  according  to  the  quantity  of  land  to  be  irrigated  by 
each  one  from  the  acequia;  to  distribute  and  apportion  the 
water;  and  in  making  such  apportionment  he  shall  take  into 
consideration  the  nature  of  the  seed  sown  or  planted;  and  to 
conduct  and  carry  on  such  distribution  with  justice  and  im- 
partiality. During  the  years  of  .scarcity  of  water  owners  of 
fields  shall  have  preference  of  the  water  for  irrigation  accor- 
ding to  the  dates  of  their  respective  occupation  of  the  land, 
either  by  themselves  or  their  grantors.  Then  follows  provi- 
sions that  it  shall  be  the  duty  of  owners  of  lands  to  furnish 
laborers  as  required  by  the  overseer;  for  the  removal  and 
punishment  of  the  overseer  in  case  of  wilfully  neglecting  or 
refusing  to   fulfill  the  duties  of  his  office,  or   for  malfeasance 


700  ARIZONA.  [§535,536 

in  office.  Fines  are  prescribed  for  the  refusal  of  land  owners 
to  furnish  the  number  of  laborers  required;  for  the  interfer- 
ence with  the  acequia  or  works  without  the  consent  of  the 
overseer;  all  of  which  fines  and  forfeiture  shall  be  for  the 
benefit  of  the  public  acequia. ^ 

§536.  Riparian  Rights  in  Arizona. — The  doctrine  of 
riparian  rights  as  recognized  by  the  common  law  is  entirely 
abolished  by  statute,  which  provides:  "The  common  law 
doctrine  of  riparian  rights  shall  not  obtain  or  be  of  any  force 
or  effect  in  this  Territory." 

1  See  the  case  of  Dyke  vs.  Cald-  Clifford  vs.  Larrieii,  Ariz,  ii  Pac. 
well,  .Ariz.    i8  Pac.  Rep.  276;  also      Rep.  397. 


CHAPTER  XXV. 
New  Mexico. 


I.  SUBJECT  TREATED    IN 

GENERAL. 
Section.— 

537.  Particular  features  of  Terri- 

tory. 

538.  Irrigation  in  Territory. 

II.  GENERAL  STATUTORY 

ENACTMENTS. 

539.  General   provisions. —  Public 

acequias. 

540.  Construction. — Con  d  e  m  n  a- 

tion  of  lauds. — Private  ace- 
quias. 


Section. — 

541.  Officers. — Elections. —  Duties 

of  officers. 

542.  Labor. — Management  of. 

543.  Corporations. 

544.  Powers  of  irrigation  corpora- 

tions. 

545.  Same. —  Condemnation     pro- 

ceedings. 

546.  Establishment    of     water- 

rights. 

547.  Exemption  from   taxation. — 

Riparian  rights. 


I.    Subject  Treated  in  (General. 

§  537.  Particular  Features  of  Territory. — The  Territory 
of  New  Mexico  can  be  divided  into  three  great  geographical 
divisions.  On  the  eastern  portion  are  the  broad  plains  which 
are  a  continuation  of  the  staked  plains  of  Texas.  These 
plains,  extending  nearly  one-third  across  the  Territory, 
gradually  rise  to  form  the  plateau  which  is  the  base  of  the 
Rocky  Mountains.  On  the  western  side  of  the  mountain 
ranges  is  the  long  narrow  valley  of  the  Rio  Grande,  which 
traverses  the  Territory  from  north  to  south,  being  confined 
for  a  great  portion  of  its  way  by  lofty  mountain  ranges.  In 
the  central  and  southern  parts  of  the  Territory  are  elevated 
table  lands,  arid  in  the  extreme,  which  are  useless  even  for 
grazing,  although  their  soil  could  be  rendered  extremely  pro- 
ductive by  the  application  of  water.  Taking  the  Territory 
as  a  whole  the  water  supply  is  comparatively  well  distributed, 
nearly  all  the  counties  of  the  Territory   having  their  small 


702  NEW  MEXICO.  [§  537-539 

rivers,  and  some  of  them  large  ones.  Unfortunately,  how- 
ever, much  of  the  water  is  far  below  the  level  of  some  of  the 
best  arable  land 

§538.  Irrii^ation  in  the  Territory. — The  Rio  Grande 
Valley  has  from  the  earliest  times  been  the  home  of  agricul- 
ture and  irrigation.  The  original  Indian  inhabitants,  and 
subsequently  the  Spanish  invaders,  took  water  from  the  river 
and  its  tributaries  not  only  in  very  much  the  same  manner  as 
that  now  prevailing,  but  even  to  some  extent  by  the  same 
ditches.  Each  town  or  group  of  farmers  has  its  own  ditch. 
Owing  to  lack  of  system  there  is  great  loss  of  water,  which 
might  often  be  avoided  by  a  single  well  built  canal  in  lieu  of 
many  temporary  poorly  constructed  ditches.  As  in  the  case 
of  Arizona,  it  ma}^  be  said  that  in  New  Mexico  also  nearly 
all  the  water  that  can  be  taken  out  upon  the  arable  land  by 
the  efforts  of  individuals  or  of  farmers  acting  in  partnership 
has  now  been  appropriated,  and  further  agricultural  growth 
can  only  be  developed  by  greater  economy  in  the  use  of  water 
and  by  the  conservation  of  the  flood  waters. 

II.  Statutory  Enactments. 

§  531).  General  Provisions.— Public  Acequias.— The  irri- 
gation laws  of  New  Mexico,  as  well  as  those  of  Arizona,  are 
based  upon  the  Spanish  and  Mexican  laws  governing  that 
subject.  In  Chapter  i,  Title  i,  of  the  compiled  laws  of  New 
Mexico  are  statutor}'  provisions  which  upon  examination  will 
be  found  to  differ  considerably  from  the  laws  of  the  other 
States  and  Territories  upon  the  subject.  The  following  is 
the  substance  of  that  chapter:^ 

Section  i  provides:  "  No  inhabitant  of  this  Territory  shall 
have  the  right  to  construct  any  building  to  the  impediment  of 
irrigation  of  lands  or  fields,  such  as  mills  or  any  other  prop- 
erty that  may  obstruct  the  course  of  the  water;  as  irrigation 
of  the  fields  should  be  preferable  to  all  others." 

Provisions  are  made  for  the  construction  of  public  ditches 
or  acequias  in  any  part  of  the  Territory;  rights  of  way  are 

1  Compiled  Laws  of  New  Mexico,  Sees.  1-53. 


§  539, 540]  NEW  MEXICO.  703 

given  for  the  same,  and  it  is  provided  that  no  one  shall  be 
bound  to  pay  for  such  land  if  the  constructors  are  the  owners 
of  all  the  land  through  which  it  passes,  as  all  the  persons  in- 
terested in  the  construction  of  the  ditch  are  to  be  benefited 
by  it. 

"  Sec.  6.  All  rivers  and  streams  of  water  in  this  Territory, 
formerly  known  as  public  ditches  or  acequias,  are  hereby 
established  and  declared  to  be  public  ditches  or  acequias." 

Provisions  are  made  for  the  several  Justices  of  the  Peace  of 
the  Territory  to  call  together  in  their  respective  precincts  all 
the  owners  of  ditches  or  acequias  and  the  proprietors  of  lands 
irrigated  by  the  same  for  the  purpose  of  electing  one  or  more 
overseers  for  said  ditches  or  acequias  for  the  same  year.  All 
fines  and  forfeitures  are  to  be  applied  by  the  overseer  to  im- 
provements upon  any  public  ditch  or  acequias.  Penalties  for 
injury  to  acequias  and  to  persons  are  prescribed.  All  ace- 
quias, public  or  private,  shall  be  the  property  of  the  persons 
who  may  have  completed  the  same,  and  no  person  who  may 
desire  to  use  the  waters  of  said  acequia  shall  be  allowed  to 
do  so  without  the  consent  of  the  majority  of  tlje  owners 
thereof,  and  upon  payment  of  a  .share  proportionate  to  its 
primary  cost. 

§540.  Construction. — Condemnation  of  Lands. — Private 
Aceiiuias. — "  Sec.  17.  All  inhabitants  of  the  Territory  of 
New  Mexico  shall  have  the  right  to  construct  either  private 
or  common  acequias,  and  to  take  the  water  for  said  acequias 
from  wherever  they  can ;  with  the  distinct  understanding  to 
pay  the  owner  through  whose  lands  said  acequias  have  to  pass 
a  just  compensation  taxed  for  the  land  used." 

It  is  the  duty  of  the  Probate  Judge  to  appoint  three  skill- 
ful men  of  well  known  honesty  to  make  an  appraisement  of 
such  lands  and  fix  the  compensation  for  the  same;  which, 
once  done,  shall  be  executed  without  appeal. 

Sec.  19  provides:  When  any  public  ditch  shall  be  destroyed 
by  rain  or  in  any  other  manner,  and  it  shall  be  impossible  to 
reconstruct  it  where  it  ran  before,  the  "  Majordomo  "  of  such 
ditch,  with  the  consent  of  a  majority  of  the  common  laborers 
of  the  same,  may  cut  through   the  lands  of  any  person  by 


704  NEW  MEXICO.  [§540,541 

first  obtaining  their  consent,  "by  the  CDinraunity  of  such 
ditch  offering  to  pay  a  compensation  to  be  agreed  upon 
between  the  owners  of  the  land  through  which  the  ditch  is  to 
be  opened  and  the  parties  interested  in  the  said  ditch."  In 
case  the  owner  does  not  agree  to  accept  the  compensation 
offered  appraisers  must  be  appointed  by  the  Justice  of  the 
Peace,  who  must  appraise  the  land,  ascertain  whether  or  not 
the  ditch  for  which  a  new  channel  is  solicited  is  entirely 
destroyed;  and  if  in  their  opinion  the  injury  done  to  their 
ditch  may  be  repaired  they  will  so  report  to  the  Justice  of 
the  Peace,  and  in  such  case  the  land  solicited  for  the  purpose 
of  opening  the  ditch  shall  in  no  manner  be  touched ;  but  if 
they  should  be  of  the  opinion  that  a  part  of  the  ditch  is  irre- 
parably destroyed  they  will  examine  and  appraise  the  land 
over  which  the  new  ditch  should  be  opened,  and  the  place 
where  the  ditch  should  properly  run. 


§541.  OHicers.— Elections.— Duties  of  Officers.— In  each 
precinct  of  the  Territory,  where  public  necessity  requires,  an 
election  shall  be  held  annually  for  the  respective  directors  of 
acequias. 

Sec.  26.  It  is  the  duty  of  the  overseers  to  superintend  the 
repairs  and  excavations  on  the  acequias;  to  apportion  the 
persons  or  number  of  laborers  furnished  by  the  proprietors;  to 
regulate  them  according  to  the  quantity  of  land  to  be  irrigated 
from  theacequia;  and  to  distribute  the  portion  of  water  among 
the  parties  entitled.  Provisions  are  made  for  penalties  in 
case  overseers  should  neglect  their  duties,  and  for  the  election 
of  others. 

Sec.  30.  In  case  of  acequias  of  extended  irrigation,  and 
where  the  lands  irrigated  are  unequal,  and  some  persons  have 
at  once  several  sections  and  parts  in  other  sections,  there  shall 
be  elected  as  directors  of  such  acequias  a  chief  Majordomo  or 
overseer,  an  assistant  and  three  acequia  commissioners;  the 
duties  of  the  said  commissioners  shall  be  to  regulate  the  num- 
ber of  laborers  to  the  respective  acequias  for  which  they  have 
been  elected,  that  shall  be  performed  by  each  owner  of  lands 
irrigated   by    the   same.     The  equalization    list    when    com- 


§  541-543J  NEW   MEXICO.  705 

pleted   must   be  recorded   in   the   office  of  the  Justice  of  the 
Peace  of  the  precinct. 

§542.  Labor. — Maiiageiueiit  Of. — "Sec.  35.  All  persons 
interested  in  a  common  ditch  or  acequia,  be  they  owners  or 
lessees,  shall  labor  thereon  in  proportion  to  their  land." 

"  Sec.  36.  All  owners  of  tillable  land  shall  labor  on  public 
ditches  or  acequias,  whether  they  cultivate  the  land  or  not." 

"  Sec.  37.  It  shall  be  the  duty  of  proprietors  to  furnish, 
each  one,  the  number  of  laborers  required  by  the  overseer  at 
the  time  and  place  he  may  designate,  for  the  purposes  men- 
tioned in  the  foregoing  section,  and  for  the  time  he  may  deem 
necessary." 

Penalties  are  then  provided  for  failure  to  furnish  such 
laborers;  for  the  obstruction  of.  or  interference  with,  any  of 
said  acequias. 

Sec.  40.  It  is  the  duty  of  all  overseers  of  acequias  to  see 
that  the  water  currents  run  so  that  no  injury  may  result  to  the 
proprietors  of  land.  Provisions  are  made  for  action  in  case  of 
threatened  danger  of  injury;  that  any  persons  being  tillers  of 
the  irrigated  land  who  shall  have  commenced  the  work  on  any 
public  acequia  in  common  labor  are  obliged  to  continue  on 
that  work  until  the  completion  of  the  clearing  of  said  acequia; 
and  in  case  of  abandonment  before  the  work  is  completed  they 
shall  pay  for  each  such  offense  a  fine  of  not  less  than  $5.00 
nor  exceeding  $10.00. 

Title  I.,  Chapter  II.,  provides  that  all  sources  of  water  are 
declared  to  be  free  in  order  that  all  persons  traveling  in  the 
Territory  may  take  water  therefrom  for  their  own  use  and  that 
of  the  animals  under  their  charge.  Penalties  are  provided 
for  the  hindering  or  molesting  any  person  at  the  time  they 
may  wish  to  take  water  for  the  purposes  described,  and  for  the 
fouling  of  water. 

§543.  Corporations. — Title  V.,  Chapter  I.,  Compiled  Laws 
of  New  Mexico,  1884,  provide  for  the  organization  and  powers 
of  corporations  for  general  purposes,  and  among  them  the 
organization  of  irrigation  corporations.' 

1  Compiled  Laws  of  New  Mexico,  1882,  ^  192-231. 


V06  NEW  MEXICO.  [§543,544 

Also,  in  1887,  the  Legislature  of  the  Territory  passed  "  An 
Act  to  authorize  the  formation  of  companies  for  the  purpose 
of  constructing  irrigating  and  other  canals  and  the  coloniza- 
tion and  improvement  of  lands."  ^ 

Sections  i  to  18  of  said  Act  provide  for  the  organization  of 
such  corporations;  what  the  articles  of  incorporation  must 
show;  and  the  powers  of  such  corporations  are  specified  as 
follows:  They  shall  have  the  power  to  sue  and  be  sued  in  any 
Court;  to  adopt  and  use  a  common  seal;  to  purchase,  acquire, 
hold,  sell,  mortgage  and  convey  such  real  and  personal  prop- 
erty as  such  corporation  may  require  to  successfully  carry  on 
and  transact  the  object  for  which  it  was  formed.  Tiiese  sec- 
tions also  provide  for  the  election  of  Boards  of  Directors  and 
their  duties;  assessments  and  collection  of  the  same  from  the 
stockholders;  the  payment  of  debts  and  the  dividends  to  be 
declared;  and  if  any  corporation  formed  under  this  Act  shall 
not  organize  and  commence  the  transaction  of  its  business 
within  one  year  from  the  time  of  filing  its  articles  its  corporate 
powers  shall  cease. 

Sees.  14  to  15  provide  for  disincorporation  and  settling  up 
the  affairs  of  the  business. 

§  54t.  Powers  of  Irrii^ation  Corimrations. — Sees.  16  to 
18  provide  that  corporations  formed  under  the  Act  shall  have 
the  power  to  borrow  such  sums  of  money  as  may  be  necessary 
for  the  construction  or  operation  of  their  ditches  and  canals 
and  other  works,  or  for  thepurchaseof  any  lands,  water  rights 
or  other  property  necessary  in  order  to  carry  out  its  objects; 
and  to  issue  and  dispose  of  their  bonds  for  anj^  amount  so  bor- 
rowed, and  to  mortgage  their  corporate  property  for  the  pay- 
ment of  any  debt. 

Sec.  17  provides  that  such  corporations  shall  have,  in  addi- 
tion to  the  powers  enumerated  above,  rights  as  follows: 

"  I.  To  cause  such  examinations  and  surveys  for  the  pro- 
posed reservoirs,  canals,  pipe  lines  and  ditches  to  be  made  as 
may  be  necessary  to  the  selection  of  the  most  eligible  loca- 
tions and  most  advantageous  routes,  and  for  such  purpose  by 

1  Stat.  18S7,  p.  29. 


§  544, 545]  NEW  MEXICO.  707 

their  officers,  agents  or  servants  to  enter  upon  the  lands  or 
water  of  any  person  of  this  Territory. 

"2.  To  take  and  hold  such  voluntary  grant  of  real  estate 
and  other  property  as  shall  be  made  to  them  in  furtherance  of 
the  purposes  of  said  corporation. 

"3.  To  construct  their  canals,  pipe  lines  or  ditches  upon  or 
along  any  stream  of  water. 

"4.  To  take  and  divert  from  any  stream,  lake  or  spring 
the  surplus  water,  for  the  purpose  of  supplying  the  same  to 
persons,  to  be  used  for  the  objects  of  Section  i  of  this  Act, 
but  sucli  corporations  shall  have  no  right  to  interfere  with  the 
rights,  or  appropriate  the  property,  of  any  one,  except  upon 
payment  of  the  assessed  value  thereof,  to  be  ascertained  as  in 
this  Act  provided;  and  provided  further,  that  no  water  shall 
be  diverted  if  it  will  interfere  with  the  reasonable  require- 
ments of  any  person  or  persons  using  or  requiring  the  same 
when  so  diverted. 

"5.  To  furnish  water  for  the  purpose  mentioned  in  Section 
I  at  such  rates  as  the  by-laws  may  prescribe;  but  equal  rates 
shall  be  conceded  to  each  class  of  consumers. 

"  6.  To  enter  upon  and  condemn  and  appropriate  any  lands, 
timber,  stone,  gravel  or  other  material  that  may  be  necessary 
for  the  uses  and  purposes  of  such  company." 

§  545.  Same. — Condemnjition  Proceedings. — Sec.  18  pro- 
vides that  should  any  such  corporation  be  unable  to  agree 
with  the  owners  as  to  such  compensation  to  be  paid  for  any 
such  land,  water,  timber,  stone,  gravel  or  other  materials  the 
District  Court  shall,  upon  the  application  of  either  party  upon 
five  days'  notice,  appoint  three  disinterested  commissioners 
who  shall  appraise  the  property  at  what  would  be  a  fair  value 
thereof,  and  make  a  return  into  Court  of  such  appraisement. 
Upon  tliis  return,  and  upon  the  payment  to  the  clerk  of  the 
Court  the  amount  so  assessed  by  such  commissioners,  the 
property  shall  be  deemed  to  be  taken  by  such  corporation, 
which  shall  thereby  acquire  full  title  to  the  same.  Either 
party  feeling  aggrieved  by  the  assessment  made  by  the  com- 
missioners may  appeal  therefrom  to  the  District  Court,  but 
such  appeal  shall  not  interfere  with  tlie  right  of  such  corpora- 


708  NEW  MEXICO.  [§  545, 546 

tion  to  take  possession  of  such  property  if  it  shall  have  paid 
into  Court  the  compensation  assessed.  Specific  rules  are  then 
laid  down  for  perfecting  the  appeal  and  trial  of  the  case,  and 
the  section  closes  as  follows:  "  The  damages  awarded  to  such 
owner  or  owners  shall  be  paid  into  Court  for  their  use  and 
benefit,  and  shall  be  paid  over  to  such  owner  or  owners  or  to 
his  legal  representatives  or  assigns  on  demand.  Said  Court 
shall  also  be  open  for  the  transaction  of  the  business  provided 
for  in  this  section  and  shall  transact  the  same  with  all  reason- 
able dispatch." 

Sec.  25  provides  that  no  corporation  shall  have  the  right  to 
divert  the  usual  and  natural  flow  of  water  of  an}-  stream 
which  by  law  has  been  declared  a  public  acequia  for  any  use 
whatsoever  between  the  15th  day  of  February  and  the  15th 
day  of  October  of  each  year,  unless  it  shall  be  by  the  unani- 
mous consent  of  all  persons  holding  agricultural  lands  under 
such  stream  or  public  acequia  to  be  irrigated  by  the  water 
furnished  by  said  stream  or  public  acequia;  and  that  no  incor- 
poration of  any  company  shall  interfere  with  the  water  rights 
of  an)'  individual  or  company  acquired  prior  to  the  passage  of 
the  Act. 

§  54G.  £sta)»nshiiient  of  Water  Kiuhts. —  On  February 
26,  1891 ,  there  was  approved  "An  Act  to  provide  a  method  for 
establishing  the  rights  of  appropriation  of  water  for  ditches, 
canals  or  feeders  of  reservoirs,  and  requiring  registration  .of 
all  such  hereafter  made,  changed  or  enlarged."  ' 

Section  i  provides:  "  That  every  person,  association  or 
corporation  hereafter  constructing  or  enlarging  any  ditch, 
canal  or  any  feeder  for  any  reservoir  and  taking  water  from 
an\'  natural  stream,  shall  within  ninety  days  after  the  con- 
struction, change  or  enlargement,  file  and  cause  to  be  recorded 
in  the  office  of  the  probate  clerk  of  the  county  in  which  such 
ditch,  canal  or  feeder  be  situated  a  sworn  statement  in  writing, 
showing  the  name  of  such  ditch,  canal  or  of  the  reservoir 
supplied  by  such  feeder,  the  point  at  which  the  head-gate  is 
situated,  the  size  of  the  ditch,  canal  or  feeder,  both  in  width 
and  depth,  the  carrying  capacity  in  inches,  the  description  of 

1  Stat.  1891,  p.  130. 


§  546, 547J  NEW  MEXICO.  709 

the  line  thereof,  the  time  when  the  work  will  commence,  the 
name  or  names  of  the  owners  thereof,  together  with  a  map 
showing  the  route  thereof,  the  legal  subdivisions  of  the  land 
if  on  survej^ed  lands,  with  proper  corners  and  distances,  and 
in  case  of  an  enlargement  or  change  the  depth  and  width, 
also  the  carrying  capacit}*  of  the  ditch  so  enlarged  or  changed 
and  the  increased  capacity'  of  the  same  thereby  occasioned, 
and  the  time  when  such  change  or  enlargement  was  com- 
menced, and  no  priority  of  rights  for  any  purpose  shall  attach 
to  an}-  such  construction,  change  or  enlargement  until  such 
record  is  made." 

§  547.  Exemption  from  Taxation. — Kiparian  Rights. — 

On  February  13,  1893,  there  was  approved  an  Act  providing 
that  all  irrigation  ditches,  canals  and  reservoirs  thereafter 
constructed  for  irrigation  purposes  shall  be  exempt  from  taxa- 
tion for  the  period  of  six  years  from  the  commencement  of 
such  construction;  and  all  irrigating  ditches,  canals  and  reser- 
voirs theretofore  constructed,  the  extent,  carrying  capacity  or 
water  supply  of  which  has  been  increased  by  enlargement, 
shall  be  exempt  from  taxation  for  six  years  from  the  com- 
mencement of  such  enlargement. 

The  Supreme  Court  of  New  Mexico,  in  the  case  of  Trambley 
vs.  IvUtermau,^  held  that  the  common  law  as  to  the  rights  of 
"  riparian  owners  was  not  in  force  in  that  Territory.  And  it 
will  also  be  noticed  by  a  study  of  the  statutes  enacted  in  that 
Territor}-  upon  the  subject  of  waters  that  they  entirely 
ignore  riparian  rights. 

1  New  Mexico,  27  Pac.  Rep.  312. 


CHAPTER  XXVI. 
Montana. 


I.  SUBJECT  TREATED   IN   GEN- 

ERAL. 
Section. — 

548.  Particular   features  of  State. 

— Irrigation. 

II.  GENERAL   STATUTORY   EN- 

ACTMENTS. 

549.  Irrigation  laws. — In  general. 

550.  Rights   of  persons   and   cor- 

porations to  water. 


Section.— 

551.  Right   of    appropriation     for 

beneficial  uses. 

552.  Sale  of  water. 

553.  Condemnation   proceedings 

for  right  of  way  for  irriga- 
tion ditches. 

554.  Riparian  rights. 


1.  Subject  Treated  in  General. 

§  548.  Particular  Features  of  State. — Irrigation. — Mon- 
tana is  the  most  northerly  State  of  the  arid  region.  In  the 
northwestern  part  of  the  State  crops  are  often  raised  without 
irrigation,  hence  this  corner  may  be  said  to  lie  in  the  sub- 
humid  region.  In  many  parts  of  the  State  the  rainfall  in 
some  years  is  sufficient  to  bring  the  crops  almost  to  maturity, 
and  often  only  one  watering  is  required.  However,  the  grain 
may  be  nearly  ripe  when  the  hot  dry  winds  sweep  down  upon 
it,  and  if  water  is  not  then  at  hand  in  abundance  all  the  past 
labor  will  be  a  complete  failure.  This  one  watering  is  as 
essential  to  the  success  of  the  crops  as  are  the  three  or  four 
waterings  of  the  more  arid  sections,  for  without  it  the  crops 
are  ruined.  The  mean  annual  precipitation  for  the  entire 
State  is  about  fifteen  inches,  varying  greatly,  however,  with 
the  altitude  of  the  locality,  the  high  summits  receiving  thirty 
inches  or  more,  usually  in  the  form  of  snow,  while  the  lower 
plains  receive  only  ten  inches  or  even  less. 

Throughout  the  entire  State,  as  a  rule,  the  construction  of 
ditches  and  irrigating  works  has  been  of  the  most  temporary 


§  548-550]  MONTANA.  711 

character,  although  there  are  a  few  well  built  canals  made  at 
great  expense.  Most  of  the  irrigated  area  is  covered  by 
ditches  dug  by  the  farmers,  without  preliminary  surveys. 
Unquestionably  more  water  from  the  streams  would  be  avail- 
able for  use  if  the  waters  were  turned  out  into  one  or  two 
large  carefully  prepared  canals  instead  of  a  great  number  of 
small  irregular  ditches.  The  building  of  great  systems  of 
storage  works  would  also  save  the  great  volume  of  flood  water 
in  the  spring,  which  now  runs  to  waste. 

II.  General  Statutory  E.iaetments. 

§549.  Irris^atiou  Laws.— In  General.— The  present  con- 
dition of  irrigation  development  and  of  the  control  of  the 
waters  of  the  State  is  by  no  means  satisfactory  to  the  farmers, 
and  most  of  them  look  forward  to  sweeping  improvements  in 
methods  and  in  legislation.  As  the  matter  now  stands  the 
additional  area  being  brought  under  irrigation  is  rapidly 
increasing  in  spite  of  the  fact  that  along  nearly  all  of  the 
smaller  streams  the  present  area  attempted  to  be  irrigated  is 
in  excess  of  the  amount  that  can  be  successfully  watered  from 
those  streams.  The  older  settlers,  who  legally  should  have 
the  right  to  the  water  to  the  extent  of  their  appropriation, 
complain  that  the  larger  ditches  taking  the  water  out  at 
points  higher  up  the  stream  are  encroaching  upon  their 
rights.  And  if  they  purchase  the  water  from  the  ditch  com- 
panies complaint  is  made  that  the  charge  of  the  company  is  a 
great  burden.  On  the  other  hand,  the  ditch  companies  com- 
plain that  they  are  not  making  what  they  should  from  their 
investment. 

§550.  Rights  of  Persons  and  Corporations  to  Water.— 

The  statutes  of  Montana  ^  provide  "  That  any  person  or  per- 
sons, corporation  or  company,  who  may  have  or  hold  a  title 
or  possessory  right  to  any  agricultural  lands  within  the  limits 
of  this  Territory,  as  defined  by  the  organic  Act  thereof,  shall 
be  entitled  to  the  use  and  enjoyment  of  the  waters  of  the 
streams  or  creeks  in  said  Territory  for  the  purpose  of  irriga- 

IConipileil  Statutes  of  Montana,  1887,  vSecs.  1239-1259 


712  MONTANA.  [§  550, 551 

tion  and  making  said  land  available  for  agricultural  purposes 
to  the  full  extent  of  the  soil  thereof. ' ' 

All  surplus  water  left  bj^  the  prior  appropriator  must  be 
turned  back  into  the  stream  within  five  days  after  demand  is 
made  upon  him,  in  writing,  by  any  person  having  a  right  to 
use  such  surplus  water. 

The  statutes  provide  for  a  right  of  way  for  ditch  or  canal 
purposes,  said  right  to  extend  only  so  far  as  is  necessary. 

Sec.  1242  provides  that  all  controversies '  respecting  the 
right  to  water  under  the  provisions  of  this  article  shall  be 
determined  by  the  date  of  the  appropriations  as  respectively 
made  by  the  parties.  The  Act  also  provides  that  persons 
digging  ditches  for  the  purposes  of  irrigation  are  to  be  liable 
for  all  damages  to  parties  injured  thereby. 

Sec.  1249.  In  all  controversies  respecting  the  right  to 
water,  whether  for  mining,  manufacturing,  agricultural  or 
other  useful  purposes,  the  rights  of  the  parties  shall  be  deter- 
mined by  the  dates»of  the  appropriations  respectively,  with 
the  modification  existing  under  the  local  laws,  rules,  customs 
and  decisions  of  the  Supreme  Court. 

§551.  llii^Iit  of  Appropriation  for  Beneficial  Uses.— On 
the  1 2th  of  March,  1885,  there  was  approved  an  Act  which 
for  the  most  part  simply  put  in  statutory  language  the  prin- 
ciples which  had  previously  been  laid  down  by  the  Supreme 
Court  of  the  United  States  and  by  the  Courts  of  that  Terri- 
tory.^    The  substance  of  this  Act  is  as  follows: 

"  See.  1250.  The  right  to  the  use  of  running  water  flowing 
in  the  str'eams,  canyons  and  ravines  of  this  Territory  may  be 
acquired  by  appropriation." 

The  following  sections  provide  that  the  appropriation  must 
be  for  beneficial  purpose;  that  the  place  of  diversion  may  be 
changed;  that  water  may  be  turned  into  another  stream  and 
mingled  with  its  water  and  then  reclaimed; '*  that  as  between 
appropriators  the  one  first  in  time  is  first  in  right;  that  any- 
one thereafter  desiring  to  appropriate  water  must  post  a  notice 

1  See  Stat.  1885,  p.  130.  Com-  be  liberally  construed.  Floyd  vs. 
piled  Stat.  1887,  Sees.  1250-1262.  Boulder    Flume    and    Mercantile 

2  Notice   of  appropriation  must       Company,  11  Mont.  435. 


§551]  MONTANA.  713 

in  writing  at  a  conspicuous  place  at  the  point  of  the  intended 
diversion,  and  within  twenty  da^'s  thereafter  a  copy  of  the 
notice  must  be  filed  with  the  County  Recorder  of  the  proper 
county,  which  in  addition  to  the  facts  required  to  be  stated  in 
the  posted  notice  must  contain  the  name  of  the  stream,  if 
such  stream  have  a  name,  and  if  it  have  not,  such  a  descrip- 
tion of  the  stream  as  will  identify  it;  and  an  accurate  descrip- 
tion of  the  point  of  di%'ersion  on  such  stream,  with  reference 
to  some  natural  objector  permanent  monument.  The  recorded 
notice  must  be  verified  by  the  appropriator  or  some  one  in  his 
behalf.  Within  forty  days  after  posting  such  notice  the  ap- 
propriator must  proceed  to  prosecute  the  construction  of  the 
works  and  must  prosecute  the  same  with  reasonable  diligence 
to  completion.  A  failure  to  comply  with  the  provisions  of 
this  Act  deprives  the  appropriator  of  the  right  to  the  use  of 
the  water  as  against  a  subsequent  claimant  who  complies 
therewith,  but  by  complying  with  its  provisions  the  right  to 
the  use  of  the  water  shall  relate  back  to  the  date  of  posting 
the  notice.^ 

The  Act  also  provides  that  former  rights  to  water  must  be 
established  by  filing  in  the  office  of  the  County  Recorder  a 
declaration  in  writing,  containing  the  same  facts  that  are  re- 
quired in  the  notice  provided  for  record. 

"  Sec.  1262.  The  measurement  of  water  appropriated  under 
this  chapter  shall  be  conducted  in  the  following  manner:  A 
box  or  flume  shall  be  constructed  with  a  head-gate  placed  so 
as  to  leave  an  opening  of  six  inches  between  the  bottom  of 
the  box  or  flume  and  lower  edge  of  the  head-gate,  with  a  slide 
to  enter  at  one  side  of  and  of  sufficient  width  to  close  the 
opening  left  by  the  head-gate  by  means  of  which  the  dimen- 
sions of  the  opening  are  to  be  adjusted.  The  box  or  flume 
shall  be  placed  level  and  so  arranged  that  the  stream  in 
passing  through  the  aperture  is  not  obstructed  by  back  water 
or  an  eddy  below  the  gate;  but  before  entering  the  opening  to 
be  measured  the  stream  shall  be  brought  to  an  eddy,  and  shall 
stand  three  inches  on  the  head-gate  and  above  the  top  of  the 

1  As  to  Construction  of  vSec  125.S  see  vSalazer  vs.  vSinart,  (Mont)  30  Pac, 
Rep.  676. 


714  MONTANA.  [§  551-553 

op2ning.      The   number   of  square    inches    contained  in  the 
opening  shall  be  the  measure  of  inches  of  water."  ^ 

§  553.  Sile  of  Wiiter. — Sees.  1263  to  1265  of  the  Compiled 
Statutes  of  Montana  provide  that  any  person  having  the  right 
to  use,  sell  or  dispose  of  water,  and  engaged  in  the  same,  who 
shall  have  a  surplus  of  water  not  used,  are  required  upon  the 
payment  or  tender  of  an  amount  equal  to  the  usual  customary 
rate  per  inch  to  convey  and  deliver  to  the  parties  requesting 
it  the  surplus  of  unsold  water.  But  the  parties  desiring  to 
avail  themselves  of  this  provision  shall  at  their  own  cost  or 
expense  construct  or  dig  the  necessary  ditches  to  receive  and 
convey  the  necessary  water  desired  by  them,  and  shall  pay  or 
tender  to  the  ditch  company  an  amount  equal  to  the  cost  or 
expense  of  tapping  any  gulch,  stream,  reservoir,  ditch,  flume 
or  aqueduct,  and  putting  in  gates,  gauges  or  other  necessary 
appliances,  and  until  the  same  is  done  the  delivery  of  the  said 
surplus  water  shall  not  be  required.  That  any  person  con- 
structing the  necessary  ditches,  and  making  the  payments  or 
tender  provided,  shall  be  entitled  to  the  use  of  so  much  of  the 
surplus  water  as  said  ditches  shall  have  the  capacity  to  carry 
and  for  which  payment  or  tender  shall  have  been  made,  and 
may  institute  and  maintain  any  appropriate  action  at  law  or 
in  equity  for  the  enforcement  of  such  right  or  recovery  of 
damages  arising  from  a  failure  to  deliver  or  wrongful  diver- 
sion of  the  same. 

§553.  Condeiiiiijitioii  ProceeiHiij^s  for  Riajht  of  Way  for 
lrriii;:ilioii  Bitches. — On  March  6,  1891,  there  was  approved 
"  An  Act  to  define  the  mode  of  procedure  in  relation  to  right 
of  way  for  ditches,  flumes  or  canals  for  irrigating  or  other 
purposes."  ^ 

1  III  an  action    for  damages  for  statute,    is    not    error,    in    that    it 

the  unlawful  diversion  of  water,  tests  the  extent  of  the  appropria- 

an  instruction    in  substance   that  tion  by  the  capacity  of  the    head- 

the  extent  of  the  plaintiff's  appro-  gate  and   not   that   of   the   ditch, 

priation     is    determined     b}-    the  Carron  vs.  Wood,  lo  Mont.  500. 

capacity    of     his    head-gate     and  2  Stat.  1891,  p.  295. 
ditches,  measured  as  required  by 


§553,554]  MONTANA.  715 

The  Act  provides  that  where  the  right  of  way  cannot  be 
acquired  by  agreement  between  the  parties  then  the  ditch 
owners  seeking  to  acquire  the  right  of  way  may  present  to  the 
Judge  of  the  District  Court  of  the  proper  district  a  petition 
praying  that  such  right  of  way  be  granted.  That  upon  the 
filing  of  the  petition  by  the  Clerk  of  the  Court  the  Judge 
shall  cause  a  citation  to  issue,  requiring  ail  parties  interested 
to  appear  before  the  Judge  on  a  day  therein  named;  such  cita- 
tion shall  be  served  on  each  of  the  parties  in  the  manner  pre- 
scribed by  law  for  serving  summons  in  ordinary  proceedings. 
Upon  a  day  set  the  Judge  shall  hear  the  allegations  and  proofs 
of  the  respective  parties,  and  if  he  is  satisfied  that  the  peti- 
tioner can  only  be  conveniently  supplied  with  water  by  means 
of  the  privilege  prayed  for  he  shall  make  an  order  adjudging 
and  awarding  such  right  of  way,  and  shall  appoint  three  com- 
missioners to  assess  the  damages  resulting  to  the  land  affected 
by  such  order.  The  commissioners  must  examine  the  prem- 
ises assessed  and  report  to  the  Court  the  damages.  Upon  the 
payment  of  the  sum  assessed,  or  a  tender  thereof,  then  the 
petitioner  is  entitled  to  the  right  of  way  as  prayed  for  and 
may  immediately  proceed  to  occupy  the  same,  and  to  con- 
struct thereon  such  works  as  are  necessary.  Proceedings  for 
appeal  are  then  provided,  but  the  prosecution  of  any  appeal 
shall  not  hinder,  delay  or  prevent  the  appellee  from  exercising 
all  the  rights  and  privileges  granted  in  the  decree,  provided 
he  shall  file  with  the  Clerk  of  the  Court  a  bond  of  sufficient 
sureties  in  double  the  amount  of  the  assessment  appealed  from. 

§554.  Riparian  Rights.— The  statutes  of  Montana  entirely 
ignore  the  rights  of  riparian  proprietors.  It  will  also  be 
noticed  that  from  the  very  first  the  decisions  of  the  Court  are 
to  the  effect  that  rights  to  water  can  only  be  acquired  by  ap- 
propriation of  the  same  to  some  beneficial  use  or  purpose, 
and  that  the  common  law  riparian  rights  are  not  recognized 
or  protected  by  the  Courts. 


CHAPTER  XXVII. 
Colorado. 


I.     SUBJECT   TREATED    IN 
GENERAL. 
Section. — 

555.  Particular  features  of  State. 

— Irrigation . 

H.      STATUTORY     EN.\CTMENTS. — 
STATE   CONTROL   OF   WATERS. 

556.  Constitutional  provisions. 

557.  Irrigation,   use  of  water  for. 

— Condemnation  of  right  of 
way. — Statement. 

558.  Water   to   be  prorated. — Pri- 

ority of  right  to  spring  wa- 
ters. 

559.  Duties    of     ditch     owners. — 

Rates  of  charges  for  water. 

560.  Authority   of    County    Com- 

missioners. 

561.  Water  districts. — Water  Com- 

missioners. 

562.  Royalties  prohibited — Illegal 

rate. —  Excess    how    recov- 
ered. 


Section.— 

563.  Adjudication  of  water  rights. 

564.  Referees,  hearing  before. 

565.  Appeals,  how  taken. 

566.  Water    divisions.  —  Division 

Superintendents. 

567.  State  Engineer,  duties  of. 

56S.  Regulation    of    the    distribu- 
tion of  water. 

569.  Water     for     domestic      pur- 

poses. 

570.  Conveyance  of  water  rights. 

III.      IRRIGATION     DITCH     CORPO- 
RATIONS. 

571.  Corporations. —  How   Organ- 

ized.— Right  of  way. 

572.  Same. — Assessments. — When 

compelled  to  furnish  water. 

573.  Riparian     rights      in      Colo- 

rado. 


I.  Subject  Treated  in  General. 

§  555.  Particular  Features  of  State. — Irrigation. — Colo- 
rado is  the  summit  of  the  continent.  Waters  flow  from  it  to 
the  north,  south,  east  and  west.  The  western  two-thirds  of 
the  State  is  traversed  with  immense  mountain  ranges. 
Stretching  from  the  eastern  base  of  the  foothills  extends  a 
long  and  gentle  slope  of  the  plains    falling  in   the. hundred 


§  555,  556]  COLORADO.  717 

miles  from  the  mountains  to  the  eastern  border  from  an  altitude 
of  from  five  to  six  thousand  feet  to  thirty-five  hundred  feet. 
This  section  of  the  country  is  very  dry,  and  these  plains  fur- 
nish no  large  streams  until  we  reach  their  eastern  border. 
The  State  is  divided  into  two  portions  by  the  continental 
divide,  with  different  conditions  affecting  the  art  of  irriga- 
tion— the  eastern  portion  with  much  land  and  relatively  little 
water;  the  western  with  these  conditions  reversed.  Within 
the  last  few  years  irrigation  has  received  a  great  impetus  and 
many  systems  of  considerable  size  have  been  constructed. 
But,  as  in  the  case  of  many  of  the  other  western  States,  the 
water  supply  is  entirely  inadequate  to  the  demand.  And 
based  upon  this  demand  the  important  movement  for  storage 
reservoirs  is  receiving  attention.  This  movement  is  most 
marked  in  regions  where  settlements  have  been  made  the 
longest,  and  consequently  where  the  demands  for  water  are 
greatest. 

II.  Statutory  Enact iiients. — State  Control  of  Waters. 

§556.  Constitutional  Pi:ovisions. — Article  XVI.,  Sees.  5 
to  8  contain  the  following:  "The  water  of  every  natural 
stream  not  heretofore  appropriated  within  the  State  of  Colo- 
rado is  hereby  declared  to  be  the  property  of  the  public,  and 
the  same  is  dedicated  to  the  use  of  the  people  of  the  State, 
subject  to  appropriation  as  hereinafter  provided." 

"  Sec.  6.  The  right  to  divert  unappropriated  waters  of  any 
natural  stream  for  beneficial  uses  shall  never  be  denied. 
Priority  of  appropriation  shall  give  the  better  right  as  between 
those  using  the  water  for  the  same  purpose;  but  when  the 
waters  of  any  natural  stream  are  not  sufficient  for  the  service 
of  all  those  desiring  the  use  of  the  same,  those  using  the  water 
for  domestic  purposes  shall  have  the  preference  over  those 
claiming  for  any  other  purpose,  and  those  using  the  water  for 
agricultural  purposes  shall  have  the  preference  over  those 
using  the  same  for  manufacturing  purposes." 

"  Sec.  6.  All  persons  and  corporations  shall  have  the  right- 
of-way  across  public,  private  and  corporate  lands  for  the 
construction  of  ditches,  canals  and  flumes  for  the  purpose  of 
conveying  water  for  domestic  purposes,   for  the  irrigation  of 


718 


COLORADO. 


[§550 


agricultural  lands,  and  for  mining  and  manufacturing  pur- 
poses and  for  drainage,  upon  payment  of  just  compensation." 
"Sec.  8.  The  General  Assembly  shall  provide  by  law  that 
the  Board  of  County  Commissioners  in  their  respective  coun- 
ties shall  have  power,  when  application  is  made  to  them  by 
either  party  interested,  to  establish  reasonable  maximum 
rates  to  be  charged  for  the  use  of  water,  whether  furnished  by 
individuals  or  corporations."  ^ 


1  See  Mills  Annotaterl  Stat,  of 
Colo.,  Sees.  510-513. 

Ill  the  case  of  Wyatt  vs.  Lari- 
mer &  Wells  Irrigation  Co.,  i 
Colo.  App  480;  29  Pac.  Rep.  906, 
the  Court  held  that  the  terms 
"public"  and  "people"  in  Sec. 
5  are  synonymous,  and  the  dec- 
laration that  the  unappropriated 
waters  are  "the  property  of  the 
public"  and  "dedicated  to  the  use 
of  the  people  of  the  State  subject 
to  appropriation"  does  not  mean 
that  the  ownership  of  water  should 
remain  inalienable  in  the  public, 
but  that  it  should  pass  to  the  peo- 
ple by  the  first  appropriation  to  a 
beneficial  use. 

In  the  case  of  Larimer  Co. 
Reservoir  Co.  vs.  People,  8  Colo. 
614;  9  Pac.  Rep.  794,  it  was  held 
under  Sec.  6  that  while  the  Legis- 
lature could  not  prohibit  the  ap- 
propriation or  diversion  of  unap- 
propriated water  for  beneficial 
purposes  it  had  tlie  power  to  regu- 
late the  manner  of  such  appropria- 
tion or  diversion. 

Also  in  Armstrong  vs.  Larimer 
Ditch  Co.,  I  Colo.  App.  49;  27  Pac. 
Rep-  235,  it  was  held,  rela'ive  to 
the  last  part  of  Sec.  6  above 
quoted,  regarding  preferences, 
that  the  Constitution  did  not  au- 
thorize an  interference  with  the 
rights   of   prior  appropriators  for 


irrigation  purposes  vested  before 
the  adoption  of  the  Constitution 
in  order  to  supply  water  for  do- 
mestic purposes  to  later  comers. 

To  make  any  diversion  of  water 
from  a  natural  stream  by  an  ap- 
propriation within  the  meaning  of 
the  Constitution  it  must  be  ap- 
plied to  some  beneficial  use,  and 
in  the  case  of  irrigation  it  must  be 
actually  applied  to  the  land. 
Farmers'  High  Line  Canal  Co.  vs. 
Southworth,  13  Colo.  11 1;  21.  Pac. 
Rep.  T028. 

The  Supreme  Court  holds  that 
Sec.  6  is  prospective  and  not  re- 
trospective in  its  action.  Strickler 
vs.  Colo.  Springs,  16  Colo.  73. 

The  term  "  irrigation,"  as  used 
in  Colorado  in  the  Constitution 
and  statutes  and  judicial  opinions, 
in  view  of  the  climate  and  soil,  is 
in  its  special  sense,  to-wit:  "  The 
application  of  water  to  lands  for 
the  raising  of  agricultural  crops 
and  other  products  of  the  soil." 
Platte  Water  Co.  vs.  Northern 
Colo.  Irr.  Co.,  12  Colo.  529. 

All  unappropriated  water  in  the 
natural  streams  of  the  State  is 
dedicated  "to  the  use  of  the  peo- 
ple," and  the  ownership  is  vested 
in  the  "public."  Wheeler  vs. 
North.  Colo.  Irr.  Co.,  10  Colo.  587. 

The  common  law  doctrine  as  to 
riparian    rights  by    which  the  ri- 


§556] 


COLORADO. 


719 


Article  X.,  Sec.  3  of  the  Constitution  provides  that  ditches, 
canals  and  flumes  owned  and  used  b}'  individuals  and  corpo- 
rations  for  irrigating  lands   owned  by   such    individuals   or 


parian  owner  is  entitled  to  the 
flow  of  the  water  in  its  natural 
channel  upon  and  over  his  lands, 
whether  he  makes  any  beneficial 
use  of  it  or  not,  is  inapplicable  to 
Colorado.  Coffin  vs.  Left  Hand 
Ditcli  Co.,  6  Colo.  447. 

The  doctrine  of  priority  of  right 
to  water  by  priority  of  appropria- 
tion for  a  beneficial  purpose,  with 
modifications  declared  in  the  Con- 
stitution, is  and  always  has  been 
enforced  in  the  State  of  Colorado. 
Thomas  vs.  Guiraud,  6  Colo.  532; 
Schilling  vs.  Roniinger,  4  Colo. 
103. 

In  the  absence  of  express  stat- 
utes to  the  contrary  the  first  ap- 
propriator  of  water  from  a  natural 
stream  for  a  beneficial  purpose 
has,  with  the  qualifications  con- 
tained in  the  Constitution,  a  prior 
right  thereto  to  the  extent  of  such 
appropriation.  Coffin  vs.  Left 
Hand  Ditch  Co.,  6  Colo.  447; 
Golden  Canal  Co.  vs.  Bright,  8 
Colo.  148;  Hammond  vs.  Rose,  11 
Colo.  526. 

The  wora  "divert"  in  the  sixth 
section  of  the  Constitution  must 
be  construed  with  the  word  "ap- 
propriation." While  the  former 
may  mean  "to  take  or  carry 
away"  the  water  from  the  bed  or 
channel  of  the  stream,  still  the 
latter  means  "to  successfully 
apply  the  water  to  the  beneficial 
use  designed;"  hence,  if  without 
infringing  upon  the  prior  rights 
of  others,  adam  is  built  in  the  bed 
of  a  non-navigable  stream  on  the 
public  domain,  such  act  is  not  un- 


lawful/^r  .y^,  and  to  comply  with 
this  section  of  the  Constitution 
the  water  need  not  be  immediately 
"taken  or  carried  away"  from  the 
dam,  but  simply  "applied  to  the 
beneficial  use  designed,"  with 
"reasonable  diligence"  and  "with- 
out unnecessary  delaj'."  Larimer 
Co.  Res.  Co.  vs.  People,  8  Colo. 
616. 

By  the  Constitution  and  laws  of 
Colorado,  Stale  and  Territorial, 
from  the  earliest  times  rights  to 
the  beneficial  use  of  water  from 
natural  streams  have  been  ac- 
quired by  diversion  through  prior 
appropriation  rather  than  by 
grant.  It  has  been  the  settled 
doctrine  of  the  Courts  of  Colorado 
that  such  appropriation  to  be  valid 
must  be  manifested  by  the  suc- 
cessful application  of  the  water  to 
the  beneficial  use  designed,  or  ac- 
companied by  some  open,  physical 
demonstration  of  intent  to  take 
the  same  for  such  use.  Platte 
Water  Co.  vs.  North.  Colo.  Irr. 
Co.,  12  Ci do.  530;  Yunker  vs.  Nich- 
ols, I  Colo.  555;  Schilling  vs.  Ro- 
minger,  4  Colo.  103;  Coffin  vs. 
Ditch  Co.,  6  Colo.  446;  Thomas  vs. 
Guiraud,  6  Colo.  532;  Sieber  vs. 
Prink,  7  Colo.  154;  Larimer  Co. 
Res.  Co.  vs.  People,  8  Colo.  616. 

Sec.  1716,  G.  S.,  1883  (same 
Mills'  Ann.  Slat.  1890,  §  2261),  is 
not  in  conflict  with  Sec.  7  of  the 
Constitution,  for  it  recognizes  the 
right  of  way  for  ditches,  and  seeks 
only  to  regulate  the  exerrise  of 
such  light  so  as  to  inflict  ihe  least 
possible  injury  and  inconvenience 


720 


COLORADO. 


[§  556,  557 


corporations,  or  the  individual  members  thereof,  shall  not  be 
separately  taxed  so  long  as  they  are  owned  and  used  exclu- 
sively for  such  purposes.^ 

§  55?.  Irrigation,  Use  of  VVuler  For. — CoiKleinuiitiou  of 
Rijrlit  of  Way.— Statement.— The  General  Statutes  of  Colo- 
rado, 1883,- provide: 

"Section  171 1.  All  persons  who  claim,  own  or  hold  a  pos- 
sessory right  or  title  to  any  land,  or  parcel  of  land,  within 
the  boundary  of  the  State  of  Colorado,  as  defined  in  the  con- 
stitution of  said  State,  when  those  claims  are  on  the  bank, 
margin,  or  neighborhood  of  any  stream  of  water,  creek  or 
river,  shall  be  entitled  to  the  use  of  the  water  of  said  stream, 
creek  or  river  for  the  purposes  of  irrigation,  and  making  said 


upon  the  owner  of  the  servient 
estate.  Tripp  vs.  Overocker,  7 
Colo.  73. 

The  right  of  a  private  party  to 
condemn  a  right  of  way  for  a 
ditch  to  convey  water  to  his  lands 
for  domestic,  agricultural  and 
mining  purposes  is  guaranteed  by 
this  section.  Downing  vs.  More, 
T2  Colo.  318. 

In  the  very  recent  case  of  Cash 
vs.  Thornton,  decided  b}'  the 
Court  of  Appeals  of  Colorado, 
Sept.  25,  1893,  34  Pac.  Rep.  268, 
where  the  plaintiff  alleged  a  prior 
appropriation  of  the  water-course 
for  irrigation  purposes  and  a  di- 
version by  defendant,  and  asked 
for  an  injunction  and  damages, 
the  jury  found  damages  against 
the  defendant  for  $150,  but  de- 
cided nothing  as  to  priority  of 
water-rights.  Defendant  moved 
for  a  new  trial,  which  was  denied 
upon  plaintiff's  filing  a  waiver  of 
any  claim  that  the  question  of  any 
prior  rights  in  the  water'had  been 
determined,  and  judgment  was 
rendered   for   the   plaintiff.     The 


Court  above  held  that  it  was 
error,  inasmuch  as  if  plaintiff  had 
no  prior  right  in  the  water  he 
was  not  entitled  to  damages  under 
the  Constitution  providing  that 
the  prior  appropriation  shall  give 
the  better  right  between  parties 
using  water  for  the  same  purpose. 

1  The  General  Statutes,  Section 
1 761  provide  that  all  ditches  used 
for  the  purpose  of  irrigation,  and 
that  only  when  the  water  is  not 
sold  for  the  purpose  of  deriving  a 
revenue  therefrom,  he  and  the 
same  are  hereby  declared  free 
from  all  taxation,  whether  for 
State,  county  or  municipal  pur- 
poses. 

It  is  held  by  the  Colorado  Court 
of  Appeals  in  the  case  of  The  Em- 
pire M.  C.  Co.  vs.  County  Treas- 
urer, I  Colo.  App.  205,  that  the 
ditch  to  be  exempt  from  taxation 
must  be  used  exclusively  for  irri- 
gating lands  owned  by  the  com- 
pany or  the  individual  members 
thereof  owning  the  ditch. 

2  Sees.  1711-1727.  I  Mill's  Anno- 
tated Statutes,  Sees.  2256  et  seq. 


§  557]  COLORADO.  721 

claims  available  to  the  full  extent  of  the  soil  for  agricultural 
purposes."  ^ 

The  sections  following  provide  that  a  right-of-waj'^  for  a 
ditch  or  canal  through  farms  and  lands  is  granted,  but  such 
right-of-way  shall  extend  only  to  a  ditch,  dyke  or  cutting 
sufficient  for  the  purpose  required. - 

Sec.  1 7 14  provides  that  in  case  the  volume  of  water  in  any 
stream  or  river  shall  not  be  sufficient  to  supply  the  continual 
wants  of  the  entire  country  through  which  it  passes  then  the 
County  Judge  of  the  county  shall  appoint  three  commissioners 
whose  duty  it  is  to  apportion  in  just  and  equitable  proportion 
a  certain  amount  of  water  upon  certain  alternate  weekly  days 
to  different  localities,  as  they  may  in  their  judgment  think 
best  for  the  interest  of  all  parties  concerned,  wnth  due  regard 
to  the  legal  rights  of  all. 

In  case  of  the  refusal  of  the  landowner  to  allow  the  passage 
of  any  ditch,  for  the  purpose  mentioned,  condemnation  pro- 
ceedings are  provided  to  condemn  and  take  the  right  of  way 
therefor  (under  the  provisions  of  Chapter  XXXI.,  concerning 
eminent  domain).  No  land  must  be  burdened  with  more 
than  one  ditch,  except  with  the  consent  of  the  owner  thereof; 
the  shortest  route  must  be  taken  for  the  ditch  through  the 
lands;  and  any  person  having  constructed  a  ditch  shall  not 
prohibit  or  prevent  any  other  person  from  using  any  ditch, 
upon  the  paj'^ment  to  him  of  a  reasonable  proportion  of  the 
cost  of  the  construction  of  the  same.^ 

1  See  Ante  Sec.  556  aud  note.  gating  water  whenever  necessarj^ 

-  Upon  the  construction  of  these  is  ineffectual  for  any  purpose  on 

sections  see  the  case  of  Yunker  vs.  account  of  its   uncertainty.     Mc- 

Nichols,   I  Colo.   554;  Colo.  C.  R.  Kiiisie  vs.  Ballard,  14  Colo.  426.— 

Co.  vs.  Allen,  13  Colo.  238;  Stew-  (See   .Southwestern    Land  Co.  vs. 

art  vs.  Stephens,  10  Colo.  445.  Hickory  Jackson    D.  Co.  33  Pac. 

This  section  gives  right  of  way  275;  Colo.  Sup.  Ct.) 

for  ditches,  but  just  compensation  3  See  vSand  Creek   L.  I.  Co.  vs. 

must  be  rendered  therefor.  Tripp  Davis,    29   Pac.    742;    McLain   vs. 

vs.  Overocker,  7  Colo   73;  Down-  People,  9  Colo.  193. 

ing  vs.  More,  12   Colo.  319;  Davis  In  the  case  of  Tripp  vs.  Over- 

vs.  Wanamaker,  2  Colo.  637.  ocker  it  was  held  that  this  section 

It  is  held  that  an  order  requiring  was  constitutional.    The  constitu- 

defendant  to  build  sluices  for  irri-  tional  provision  granting  the  right 


722  COLORADO.  [§  557 

"Sec.  1720.  Every  person,  association  or  corporation  here- 
after constructing' or  enlarging  an}'  ditch,  canal,  or  feeder  for 
an}'  ditch  or  reservoir  for  irrigation  and  taking  water  directly 
from  any  natural  stream,  and  of  a  carrying  capacity  of  more 
than  one  cubic  foot  of  water  per  second  of  time,  as  so  con- 
structed or  enlarged,  shall,  within  ninety  (90)  days  after  the 
commencement  of  such  construction  or  enlargement,  file  in 
the  office  of  the  County  Clerk  and  Recorder  of  the  count\'  in 
which  the  head-gate  of  such  ditch  or  feeder  may  be  situated, 
and  also  in  the  office  of  the  State  Hydraulic  Engineer,  a  map 
showing  the  point  of  location  of  such  head-gate;  the  route  of 
such  ditch  or  canal,  or  the  high-water  line  of  such  reservoir 
or  reservoirs,  and  the  route  of  the  feeder  to,  and  the  ditches 
or  canals  from,  such  reservoir  or  reservoirs;  the  legal  subdi- 
visions of  the  lands  upon  which  such  structures  are  built,  or 
to  be  built,  if  on  surveyed  lands,  the  names  of  the  owners  of 
such  lands,  as  far  as  the  same  are  of  record  in  the  office  of  the 
County  Clerk  of  the  count}-  in  which  they  are  situated;  such 
courses,  distances  and  corners,  by  reference  to  legal  subdi- 
visions, if  on  surveyed  lands,  or  to  natural  objects  if  on  un- 
surveyed  lands,  as  will  clearly  designate  the  location  of  such 
structures.  Upon  or  attached  to  such  map  shall  be  a  state- 
ment showing: 

''First,  The  point  of  location  of  the  head-gate  above  men- 
tioned. 

''Second,  The  depth,  width  and  grade  of  such  ditch,  canal 
or  feeder. 

"  Third,  The  carrying  capacity  of  such  ditch,  canal  or  feeder 
in  cubic  feet  per  second  of  time,  and  the  capacity  of  such 
reservoir  or  reservoirs  in  cubic  feet  when  filled  to  the  high- 
water  mark. 

"Fourth,  The    time  of  commencement   of  work   on   such 

of    way   for   the    construction    of  where    he    can    feasibly     conve)' 

ditches  must  be  exercised  in  such  water  through  defendant's  ditch. 

a  way  as  to  inflict  the  least  possi-  Denver,  etc.  vs.  Lamborn,  8  Colo, 

ble  inconvenience  and  injury  upon  385.     See  also  Downing  vs.  More, 

the  owner  of  the  servient  estate.  12  Colo.   319;  San  Luis  C.   I.   Co. 

By  this  section  a  party  cannot  take  vs.  Kenilworth  C.  Co.  (Colo.  App.) 

a  second  ditch   across   cultivated  32  Pac.  Rep.  860. 
lands  to  irrigate  his  lands  beyond. 


§  557, 558]  COLORADO.  723 

structures,  which  time   may   be  dated  from    the  commence- 
ment of  the  survej'S  therefor. 

"  In  case  of  an  enlargement  such  statement  shall  also  show 
the  matters  required  in  items  Second,  Third  and  Fourth  above, 
as  to  the  enlargement,  and  state  the  increased  capacity  arising 
from  such  enlargement.  If  such  statement  be  filed  within 
the  time  above  limited,  priority  of  right  of  way,  and  water 
accordingly,  shall  date  from  the  day  named  as  the  day  of  com- 
mencing work,  otherwise,  only  from  the  date  of  the  filing  of  the 
same;  provided,  that  nothing  herein  contained  shall  be  taken 
to  dispense  with  the  necessity  of  due  diligence  in  the  prose- 
cution of  such  structures  on  the  part  of  the  projectors  of  the, 
same.  Such  statement  shall  be  signed  by  the  person,  associ- 
ation or  corporation  on  whose  behalf  it  is  made,  and  the  truth 
of  the  matters  shown  in  such  map  and  statement  shall  be 
sworn  to  by  some  person  in  whose  personal  knowledge  the 
truth  of  the  same  shall  lie."^ 

§55S.  Water  to  be  Pro  Rated.— Priority  of  Ri2:ht  to 
Spring  Waters. — Sec.  1722  provides:  If  at  any  time  any 
ditch  or  reservoir  from  which  water  is  drawn  for  irrigation 
shall  not  be  entitled  to  a  full  suppl}^  of  water  from  the  nat- 
ural stream  which  supplies  the  same,  the  water  actually 
carried  by  such  ditch,  or  held  in  such  reservoir,  shall  be 
divided  among  all  consumers  of  water  from  such  works,  to 
each  his  share  pro  rata,  according  to  the  amount  that  each 
one  is  entitled  to,  so  that  all  owners  and  purchasers  shall  suf- 
fer from  the  deficiency  thus  arising  in  proportion  to  the 
amount  of  water  to  which  each  one  should  'have  received  in 
case  no  such  deficiency  had  occurred. ^ 

"Sec.  1723.     All  persons  who  shall  have  enjoyed  the  use 

1  vSession  law,  i8Si,  p.  162;  Gen.  same  beneficial  purpose  priority 
Stat.  1S83,  p.  562:  Mills'Ann.  Stat.  of  use  gives  superiority  of  right 
Sec.  2265,  as  amended  by  law  of  irrespective  of  the  mode  of  diver- 
1887,  p.  314.  sion;  and  this  rule  is  applicable  to 

As  to  the  construction    of  this  individual  customers,  as  between 

section    before    amendment,    see  themselves,    when    they     receive 

Crisman  vs.  Herderer,  5  Colo.  594.  water  through  the  agency   of  an 

2  As  between  those  using  the  artificial  stream,  as  well  as  when 
water  of  natural  streams    for  the  they   receive    it   direct   from    the 


724  COLORADO.  [§  558, 559 

of  the  water  in  any  natural  stream  or  the  irrigation  of  any 
meadow  land,  by  the  natural  overflow'  or  operation  of  the 
water  of  such  stream  shall,  in  case  the  diminishing  of  water 
supplied  by  such  stream  for  any  cause  prevent  such  irrigation 
therefrom  in  as  ample  a  manner  as  formerly,  have  right  to 
construct  a  ditch  for  the  irrigation  of  such  meadow,  and  to 
take  water  from  such  stream  therefor,  and  his  or  their  right 
to  water  through  such  ditch  shall  have  the  same  priority  as 
though  such  ditch  had  been  constructed  at  the  time  he,  she 
or  they  first  occupied  and  used  such  land  as  meadow  ground." 

In  1889  an  Act  was  passed  regulating  priority  of  right  in 
seepage  or  spring  waters,  which  is  as  follows:  "  All  ditches 
now  constructed  or  hereafter  to  be  constructed  for  the  purpose 
of  utilizing  the  waste,  seepage  or  spring  waters  of  the  State, 
shall  be  governed  by  the  same  laws  relating  to  priority  of 
right  as  those  ditches  constructed  for  the  purpose  of  utilizing 
the  waters  of  running  streams ;  provided,  that  the  person  upon 
whose  lands  the  seepage  or  spring  waters  first  arises  shall 
have  the  prior  right  to  such  waters  if  capable  of  being  used 
upon  his  lands."  ^ 

Sees.  1724  to  1727  provide  for  the  construction  and  mainte- 
nance of  reservoirs  and  to  condemn  lands  for  such  reservoirs, 
the  conducting  of  water  of  any  reservoir  into  and  along  any  of 
the  natural  streams  and  the  right  to  place  wheels  on  the 
streams  for  the  purpose  of  raising  water  to  the  level  required 
for  the  purpose  of  irrigation. ^ 

§559.  Duties,  of  Ditch  Owners.— Rates  of  Charges  for 
Water. — Sees.  1 728-1 737  provide  that  the  owners  of  any  ditch 
shall  carefully  maintain  the  embankment  thereof,  so  that  the 
waters  of  such  ditch  shall  not  flood  or  damage  the  premises 
of  others.'^    The  owner  of  the  ditch  must  prevent  the  water 

natural  stream.     The    pro    rating  rating    water   law   of  1861,  p.  68. 

statute,  it  is  held,  must  be  limited  1  Session  Law,  1889,  p.  215,  Sec. 

accordingly.  Farmers' High  Lime  i;  Mills'  Ann.  Stat.,  Sec.  2269. 

Canal  Co.  vs.  Southworth,  13C0I0.  2  Larimer  Co.    Res.  Co.  vs.   Peo- 

iii;  21  Pac.  Rep.  102S.  pie,  8  Colo.  615. 

Also  see  Coffin   vs.    Left   Hand  3  See  the  case  of  Greelej' Ir.  Co. 

Ditch  Co.,  6  Colo.   448,  as  to  pro-  vs     House,   14  Colo.   549,   24  Pac. 


§  559J  COLORADO.  725 

from  wasting.  During  the  summer  .season  the  owners  of 
ditches  must  not  permit  any  greater  quantit}^  of  water  than  is 
absolutely  necessary  for  irrigating  their  land  to  run  through 
the  ditch. 

"  Sec.  1740.  Any  person  or  persons,  acting  jointly  or  sever- 
ally, who  shall  have  purchased  and  used  water  for  irrigation 
for  lands  occupied  by  him,  her  or  them,  from  any  ditch  or 
reservoir  and  shall  not  have  ceased  to  do  so  for  the  purpose  or 
with  the  intent  to  procure  water  from  some  other  source  of 
supply,  shall  have  a  right  to  continue  to  purchase  water  to  the 
same  amount  of  his,  her  or  their  lands,  on  paying  or  tendering 
the  price  thereof  fixed  b}'  the  county  commissioners  as  above 
provided,  or  if  no  price  shall  have  been  fixed  bj'^  them  the 
price  at  which  the  owners  of  such  ditch  or  reservoir  may  be 
then  selling  water,  or  did  sell  water  during  the  then  last  pre- 
ceeding  year.  This  section  shall  not  apply  to  the  case  of 
those  who  may  have  taken  water  as  stockholders  or  share- 
holders after  they  shall  have  sold  or  forfeited  their  shares  of 
stock,  unless  they  shall  have  retained  a  right  to  procure  such 
water  by  contract,  agreement  or  understanding,  and  use 
between  themselves  and  the  owners  of  such  ditch,  not  then  to 
the  injury  of  other  purcha.sers  of  water  from  or  shareholders 
in  the  same  ditch."  ^ 

Rep.  329,  where  it  was  held   that  cise  of  this  right,  to  acknowledge 

the  defendants  were  liable   under  the  equity  of  all  rules  adopted  by 

the  statutes,  and  that  they  could  the  ditch  company, 

not  avoid  the  consequence  of  their  In  the  case  of  Wheeler  vs.  North 

own  negligence  on  the  plea  that  Colo.  Irr.  Co.,  10  Colo.  595,  it  was 

gophers     had    burrowed     in    the  held  that  this 'section  applies  only 

banks,    and    that    therefore     the  to  those   parties  who   have  exer- 

overflow  was  due  to   unavoidable  cised  the   right   to  use   water  for 

accident.  their  lands   and  is   an   assurance 

1  In  the   case   of  Golden    Canal  of  the  right  to  continue  the  use  of 

Co.    vs.    Bright,    8    Colo.    149,  the  the  water,  and  this  right  may  be 

Court  held  that  this  section  con-  enforced  by  mandamus.  The  Court 

fers  an  affirmative  right  upon  the  held  it  did  not  give   one  who  had 

prior  purchaser,  who  has  complied  never   had   the   u.se  of   water  the 

with   the    provisions    thereof,   to  right  to  the  water,  but  upon  this 

continue   his   purchase   of  water,  propo.sition  see  the  case  of  Combs 

and  he   cannot    be    required   as  a  vs.     Agricultural    Ditch    Co.,     17 

condition  precedent   to  the    excr-  Colo.  196;  28  Pac.  Rep.  966. 


726  COLORADO.  [§  560 

§  560.  Authority  of  County  Commissioners. — In  con- 
formity with  Sec.  8,  Article  XVI.,  of  the  Constitution  of 
Colorado,  there  was  approved  on  April  4,  1887,  "  An  Act  to 
regulate  the  mode  of  fixing  the  rates  of  compensation  b}- 
boards  of  Count}'  Commissioners  for  water  furnished  and  de- 
livered for  irrigation  and  other  lawful  purposes  from  ditches, 
canals,  conduits  and  reservoirs,  and  to  repeal  laws  inconsistent 
therewith,  and  to  punish  offenses  contrary  thereto." 

"Section  i.  The  County  Commissioners  of  each  county 
shall,  at  their  regular  sessions  in  each  year  and  at  such  other 
sessions  as  they  in  their  discretion  may  deem  proper,  in  view 
of  the  irrigation  and  harvesting  season  and  the  convenience 
of  all  parties  interested,  hear  and  consider  all  applications 
which  maj'  be  made  to  them  by  any  part}'  or  parties  interested 
either  in  furnishing  and  delivering  for  compensation  in  any 
manner,  or  in  procuring  for  such  compensation  water  for  irri- 
gation, mining,  milling,  manufacturing  or  domestic  purposes 
from  any  ditch,  canal,  conduit  or  reservoir,  the  whole  or  any 
part  of  which  shall  lie  in  such  county.  Which  application 
shall  be  supported  by  such  affidavits  as  the  applicant  or  appli- 
cants may  present,  showing  reasonable  cause  for  such  board 
of  County  Commissioners  to  proceed  to  fix  a  reasonable 
maximum  rate  of  compensation  for  water  to  be  thereafter 
delivered  from  such  ditch,  canal,  conduit  or  reservoir  within 
such  county."  ^ 

See     also    on    subject     Supply  contracts  may  be  made   with  the 

Ditch  Co  vs.  Elliott,  10  Colo.  328.  customers,    and    consumers    may 

In  the  case  of  Mack  vs.  Jackson,  continue  under  pre-existing  con- 

9  Colo.  537,  it  was  held  that  where  tracts.     South   Boulder  Ditch  Co. 

a  party  sues  for  damages  caused  vs.  Marfell,   15   Colo.  302;  25  Pac. 

by   being   restrained   from   using  Rep.  504. 

the  water  from  a  certain  ditch,  if  See  also  Rockwell  vs.  Highland 

it  is   shown    that   he   could   have  Ditch  Co.,    i    Colo.    App.    396;    29 

obtained  sufficient  water  from  an-  Pac.  Rep.  2S9;  and  Farmers'  High 

other  source  he   will   not   be   en-  Line  Canal   Co.  vs.  White  (Colo.), 

titled    to   receive   a   greater   sum  31  Pac.  Rep.  345. 

than  he  would  have  had  to  expend  l  Prior  to  this  Act  it  was  held  in 

to  obtain  water  from  such  source.  the  case   of   Wheeler   vs.    North. 

Although  the   County  Commis-  Colo.  Irr.    Co.,   10   Colo.   583,   the 

sioners  in   pursuance  of  this  stat-  statute     did     not     authorize    the 

ute  may  fix   a  water   rate,  special  County  Commissioners  of  a  given 


§560,561]  COLORADO.  -727 

Specific  rules  are  then  laid  down  for  hearing  the  parties  in- 
terested and  taking  the  necessar}'  testimony.  "  Upon  hearing 
and  considering  all  the  evidence  and  facts  and  matters  in- 
volved in  the  case  said  board  of  Commissioners  shall  enter  an 
order  describing  the  ditch,  canal,  conduit,  reservoir  or  other 
work  in  question  with  sufficient  certainty,  and  fixing  a  just 
and  reasonable  maximum  rate  of  compensation  for  water  to  be 
thereafter  delivered  from  said  ditch  or  other  works  as  last  afore- 
said within  the  county  in  which  such  Commissioners  act  and 
such  rate  shall  not  be  changed  within  two  years  from  the 
time  when  they  shall  be  so  fixed  unless  upon  good  cause 
shown." 

§  561.  Water    Districts. — Water  Commissioners. — In  the 

State  of  Colorado,  on  petition  of  parties  interested,  there  have 
been  formed  from  time  to  time  irrigation  districts  including 
tracts  of  land  that  can  be  irrigated  from  the  same  source  of 
supply.  About  sevent}^  of  these  districts  have  been  formed  in 
the  State,  and  over  each  district  a  Water  Commissioner  is  ap- 
pointed by  the  Governor.^ 

The  duties  of  the  Water  Commissioners  are  to  divide  the 
w^ater  of  the  natural  streams  of  their  respective  districts 
among  their  several  ditches  taking  water  from  the  same 
stream  according  to  the  prior  rights  of  each  respectively;  in 
whole  or  in  part  to  shut  and  fasten,  or  cause  to  be  shut  and 
fastened,  the  head-gates  of  any  ditch  heading  in  any  natural 
streams  of  the  district,  which  in  a  time  of  scarcity  of  water 
shall  not  be  entitled  to  water  by  reason  of  the  priority  of  the 
rights  of  others  below  them  on  the  same  stream. 

Penalties  are  prescribed  for  interfering  with  au}'  head-gates 
without  authority. 

Sec.  1758  provides  that  Water  Commissioners  shall  not 
begin  their  work  until  they  shall  be  called  on  by  two  or  more 

county   to   establish  a   maximum  1S83,    page  566,    see    the   case    of 

rate  if  the  head   of   the  canal  was  Golden    Caiiai    Co.    vs.    Bright,   8 

located  in  another  county.  Colo.  147. 

As   to   the   constitutionality    of  ^  Mills'  .\nn.  Stat.,    Sees.    2310- 

the  law  of  1879  upon  this  subject  2392;  General  Stat.    Colo.,    Sees. 

L.  1879,  pages   94-96,    Gen.    Stat.  1741-1758. 


728  COLORADO.  [§  561, 562 

persons  controlling  ditches,  by  application  in  writing,  stating 
that  there  is  necessity  for  their  action;  and  they  shall  not 
continue  performing  services  after  the  necessity  shall  cease. 

By  an  Act  approved  March  25,  1889,^  the  Water  Commis- 
sioners are  invested  with  the  power  of  Constables  and  may  ar- 
rest any  persons  violating  their  orders  relative  to  the  opening 
or  shutting  down  of  head-gates  or  using  water  for  irrigating 
purposes,  and  may  take  such  offender  before  the  nearest 
Justice  of  the  Peace  who  may,  if  such  offender  be  convicted, 
fine  him  in  anj^  sum  not  exceeding  $100.00,  and  in  default  of 
payment  of  such  fine  may  imprison  him  in  the  Count}^  Jail 
not  exceeding  thirty  days. 

Power  is  given  each  Water  Commissioner,  whenever  he 
shall  deem  it  necessar}-,  to  employ-  suitable  assistants  to  aid 
him  in  the  discharge  of  his  duties.  Each  Water  Commis- 
sioner must  keep  an  itemized  account  of  the  time  of  each 
assistant  by  him  emploj-ed;  and  also  an  itemized  account  of 
the  time  spent  by  himself  in  the  duties  of  his  office,  and 
shall  certify  the  same  to  the  board  of  County  Commissioners. 

§  562.  RoyaUies  Prohibiteil. — Illeajal  Rate. — Ex:ee«}s  how 
Recovered. — On  April  4,  1887,  there  was  approved  "  An  Act 
to  define,  prohibit,  punish  and  restrain  extortion  and  other 
abuses  in  the  management  of  ditches,  canals  and  reser- 
voirs."^' 

Section  i  of  said  Act  provides:  It  shall  not  be  lawful  for 
any  person  holding  or  controlling  any  ditch,  canal  or  reservoir 
for  the  carr3'ing  or  storing  of  any  water  taken  from  any 
natural  stream  or  lake  within  the  State  to  be  furnished  or  de- 
livered for  compensation  for  irrigation,  mining,  milling  or 
domestic  purposes,  to  persons  not  interested  in  such  owner- 
ship or  control,  to  demand,  bargain  for,  accept  or  receive  from 
any  person  who  maj-  apply  for  water  for  any  of  the  aforesaid 
purposes,  any  money,  or  other  valuable  thing  whatsoever,  or 
any  promise  or  agreement  therefor,  directl}'^  or  indirectly,  as 
royalty,  bonus  or  premium  prerequisite  or  condition  precedent 

1  See  Laws,    1889,'  p.   469;    Mills"  2  Session    Laws,    1887,     p.     308  ; 

Ann.  Stat.,  Sees.  2386-2391.  Mills'  Ann.  Stat.,  Sees.  2304-2309. 


§  562]  COLORADO  129 

to  the  right  or  privilege  of  applying,  or  bargaining  for,  or 
procuring  such  water.  But  such  wacer  shall  be  furnished, 
carried  and  delivered  upon  payment  or  tender  of  the  charges 
fixed  by  the  Count)-  Commissioners  of  the  proper  county  as  is 
or  may  be  provided  b}'  law.  Anj'  and  all  moneys,  and  every 
valuable  thing  or  consideration  of  whatsoever  kind,  which 
shall  be  so,  as  aforesaid,  demanded,  charged,  bargained  for, 
accepted,  received  or  retained  contrary-  to  the  provisions  of 
this  section  shall  be  deemed  and  held  an  additional  and  cor- 
rupt rate,  charge  or  consideration  for  the  water  intended  to  be 
furnished  or  delivered  therefor,  or  because  thereof,  and  wholly 
extortionate  and  illegal;  and  when  paid,  delivered  or  surren- 
dered may  be  recovered  back  from  the  party  to  whom  or  for 
whose  use  the  same  shall  have  been  paid,  together  with  costs 
of  suit,  including  reasonable  fees  of  attorneys  of  plaintiff,  by 
proper  action  in  an 3'  Court  having  jurisdiction. 

Sec.  2  provides  that  every  person  owning  or  controlling  any 
such  work  mentioned  in  the  first  section  who  shall  after  de- 
mand in  writing  made  upon  him  for  the  delivery  of  water  for 
the  purposes  mentioned  from  the  works  owned  or  controlled 
by  him,  and  after  the  tender  of  the  lawful  rate  of  compensa- 
tion therefor,  in  lawful  money,  demand,  require,  bargain  for, 
accept,  receive  or  retain  from  the  party  making  such  applica- 
tion any  money  or  thing  of  value  as  such  royalty,  bonus  or 
premium,  as  is  by  the  provisions  of  the  first  section  prohi- 
bited, shall  be  deemed  guilty  of  a  misdemeanor,  and  on  con- 
viction thereof  shall  be  punished  by  a'fineof  not  less  than 
$100.00,  nor  more  than  $5,000.00,  or  imprisonment  for  a 
term  not  less  than  three  months  nor  more  than  one  year,  or 
both  such  fine  and  imprisonment,  in  the  discretion  of  the  Court. 

Sec.  3  provides  for  like  penalties  as  above  to  every  person 
owning  or  controlling  any  such  irrigation  works  mentioned 
who  shall  after  demand  in  writing  refuse  to  furnish  or  carr>- 
and  deliver  from  such  works  any  water  so  applied  for  vvhicli 
might  be  by  the  use  of  reasonable  diligence  furnished  and 
delivered  without  the  infringement  of  prior  right.' 

lA  consumer  has  no  rij^ht  to  may  sec  fit  from  a  ditch,  and  a 
forcibly  take    whatever    water  he       contract    which     t,Mves    him    such 


730  COLORADO.  [§  563 

§563.  Adjudication  of  Water  Rights. — In  i88i  there  went 
into  effect  "  An  Act  to  regulate  the  use  of  water  for  irriga- 
tion, and  providing  for  settling  the  priority  of  right  thereto 
and  for  payment  of  expenses  thereof  and  for  payment  of  all 
costs  and  expenses  incident  to  said  regulation  of  use."  ^ 

Sec.  1762  provides  that  jurisdiction  is  vested  exclusively  in 
the  District  Court  of  the  proper  county  for  settling  the  prior- 
ity of  rights  to  the  use  of  water  for  irrigation.  And  the  fol- 
lowing sections  provide  that  In  order  that  all  persons  may  be 
protected  in  their  lawful  rights  to  the  use  of  water  for  irriga- 
tion those  claiming  water  rights  in  a  certain  source  of  supply 
shall  on  or  before  the  first  day  of  June,  1881,  file  with  the 
Clerk  of  the  District  Court  a  statement  containing  the  names 
and  addresses  of  all  the  claimants  of  any  ditch  or  works  and 
all  the  facts  regarding  the  same,  and  praying  for  an  adjudi- 
cation of  their  respective  rights.  The  Court  must  then  hear 
at  a  date  set  all  the  evidence  offered  by  any  parties  interested, 
and  make  a  decree  determining  and  establishing  the  several 
priorities  of  right  by  appropriation  of  water  of  the  several 
ditches  and  reservoirs  in  such  water  district,  concerning  which 
such  testimony  shall  have  been  offered.  A  certified  copy  of 
such  decree  shall  be  prima  facie  evidence  of  all  the  facts 
cited  therein.  Specific  rules  are  laid  down  relative  to  the 
proceedings  of  the  Court;  service  of  notice  on  all  parties;  the 
taking  of  the  testimony  and  the  adjudication  of  rights  in 
accordance  with  the  evidence  before  the  Court. ^ 

It  is  the  duty  of  the  Court  to  determine  the  matters  put  in 
evidence,  and  to  make  and  cause  to  be  entered  a  decree  deter- 
mining and    establishing    the  several  priorities  of  right  by 

right    is    void   as   against   public  that  the  title  of  said  Act  is  suffi- 

policy.     Farmers'  H.  C.  R.  Co.  vs.  cient    and   clearly   expresses    the 

White,  31  Pac.  Rep.  345.  subject  as  required  by  the  Co«sti- 

1  Approved  and  enforced  Febrti-  tution,  Art.  V-,  §21. 

ary  19,   1879.     Session  Laws  1879,  2  As  to  the  construction  .of  the 

p.   94,  amended   b}-   Act  of    iSSi,  Irrigation  Acts   of   1875   and  1881 

Laws    1881,    p.    142.      See    Mills'  supra,    see   Platte    Water   Co.  vs. 

Ann.  Stat.  2399-2439;  General  Stat.  North'Colo.  Irr.  Co.,  12  Colo.  529; 

Colo.  1883,  Sec.  1762-1801.  Farmer's  High  Line  Canal  Co.  vs. 

In  the  case  of  Golden  Canal  Co.  Southworth,  13  Colo.  135. 
vs.  Bright,  8  Colo.  147,  it  was  held 


§  563, 564]  COLORADO.  731 

appropriation  of  water  of  the  several  ditches,  canals  and 
reservoirs  in  such  water  district,  concerning  which  testimony 
shall  have  been  oflfered,  each  according  to  the  time  of  its  said 
construction  and  enlargement,  or  enlargements  or  extensions, 
with  the  amount  of  water  which  shall  be  held  to  have  been 
appropriated  by  such  construction  and  enlargements  or  exten- 
sions, describing  such  amount  by  cubic  feet  per  second  of 
time  if  the  evidence  shall  show  sufficient  data  to  ascertain 
such  cubic  feet,  and  if  not,  by  width,  depth  and  grade  and 
such  other  description  as  will  most  certainly  and  conveniently 
show  the  amount  of  water  intended  as  the  capacity  of  such 
ditch,  canal  or  reser^'oir,  in  such  decree.  The  Court  shall 
further  order  that  each  and  every  party  interested  shall 
receive  from  the  Clerk  a  certificate  under  seal  of  the  Court 
showing  the  date  or  dates  and  amount  or  amounts  of  appropria- 
tions adjudged  in  favor  of  such  ditch,  canal  or  reservoir  under 
and  by  virtue  of  the  construction,  extensions  and  enlargements 
thereof,  severally;  also  specifying  the  number  of  said  ditch 
and  of  each  priority  to  which  the  same  may  be  entitled  by 
reason  of  such  construction,  extension  and  enlargements. ^ 
The  holder  of  such  certificate  shall  exhibit  the  same  to  the 
Water  Commissioner  of  the  district  when  he  commences  the 
exercise  of  his  duties,  and  said  certificate  shall  be  the  warrant 
of  authority  to  said  Water  Commissioner  for  regulating  the 
flow  of  water  in  relation  to  such  ditch,  canal  or  reservoir. 

§564.  Referees,  Hearing  Before.— Sec.  1772  provides  that 
if  for  any  cause  the  judge  of  said  Court  shall  deem  it  imprac- 
ticable or  inexpedient  to  proceed  to  hear  such  evidence  in 
open  Court  he  shall  make  and  cause  to  be  entered  of  record  an 
order  appointing  some  discreet  person,  properly  qualified,  a 
referee  of  said  Court  to  whom  shall  be  referred  the  statement 
of  claim  on  file  in  said  matter,  the  matter  of  taking  evidence 
and  reporting  the  same,  making  an  abstract  and  findings  upon 
the  same,  and  preparing  a  decree  in  said  adjudication.^ 

1  See  Platte  Water  Co.  vs.  North  2  in  the  case  of   Union  Colony 

Colo.   Irr.  Co..   12  Colo.   529;  Far-  vs.  Klliott,  5  Colo.  373,  the  Court 

mer's  High  .Line  &  Canal  Co.  vs.  held   that    where    a   referee    was 

Southworth.  13  Colo.   135.  appointed   to  take  the  testimony 


732  COLORADO.  [§  564, 565 

Specific  rules  are  then  laid  down  as  to  the  proceedings 
before  the  referee  and  the  taking  of  the  testimony.  The 
referee  shall  make  a  separate  finding  of  fact  connected  with 
each  ditch,  canal  and  reservoir,  touching  which  evidence  shall 
have  been  offered;  and  he  shall  also  prepare  a  draft  of  a  decree 
in  accordance  with  his  said  finding;  which  decree  so  prepared 
by  him  shall  be  returned  with  his  report  to  the  Court,  and  he 
shall  file  his  report  with  said  evidence,  abstract  and  findings, 
and  said  decree  with  the  Clerk  of  the  Court,  and  inform  the 
Judge  of  so  doing  without  delaj'. 

Upon  the  filing  of  said  report  the  Court  shall  cause  an  order 
to  be  entered  setting  some  day  as  soon  as  practicable  when 
the  Court  shall  proceed  to  hear  and  determine  the  report;  at 
which  time  any  party  interested  may  appear  and  move  excep- 
tions to  any  matter  in  the  findings  or  decree  made  by  said 
referee,  and  after  hearing  the  same  the  Court  shall,  if  the 
decree  be  approved,  cause  the  same  to  be  entered  of  record  or 
otherwise  such  modifications  thereof  or  other  decree  as  shall 
be  found  just  and  conformable  to  the  evidence.* 

§  5()5. — Appeals,  how  Taken. — Section  1789  provides  that 
any  of  the  parties  who  feel  aggrieved  by  an}'  portion  of  such 
decree  may  have  an  appeal  from  the  District  Court  to  the 
Supreme  Court;  and  specific  rules  of  proceedure  are  laid 
down  for  such  appeals. 

Sec.  1793  provides  that:  The  Supreme  Court,  in  all  cases 
in  which  judgment  is  rendered,  and  any  part  of  the  decree 
appealed  from  is  reversed  and  in  which  it  may  be  practicable, 
shall  make  such  decree  in  the  matters  involved  in  the  appeal 
as  should  have  been  made  by  the  District  Court,  or  direct  in 
what  manner  the  decree  of  that  Court  shall  be  amended.''^ 

by  a  district  judge,  and  the  rules  viewed  Dorr  vs.  Hammond,  7  Colo, 

made  b)-  said  judge  in  relation  to  80. 

the  taking  of  proofs  to  adjudicate  2  See  Golden  Canal  Co. vs. Bright, 

priority  are  alleged  to   be  inade-  8  Colo.  155;  Dorr  vs.  Hammond,  7 

quate  and  illegal,  mandamus  will  Colo.  80. 

not  lie  to  compel   said   judge   to  It  is  held  that  where  proofs  are 

change  the  rules  made.                     .  mainly  taken   by  a  master  or  ref- 

1  The  referee's  judgment  on  the  eree  it  is  the  duty  of  the  Supreme 

weight  of   evidence   may    be    re-  Court   to   sift   and    weigh   all  the 


§  566]  COLORADO.  733 

§  5(>(>.  Water  Divisions.  —  Division  Siiperinteiulents. — 

Section  1802^  provides,  that  for  the  better  regulation  of  the 
distribution  of  water  for  irrigation  among  the  several  ditches, 
etc.,  into  which  such  water  may  be  lawfully  taken,  in  times 
of  scarcity  thereof,  the  water  districts  shall  be  constituted 
into  water  divisions.  The  law  provides  that  other  divisions 
maj^  be  constituted  from  time  to  time  by  acts  of  the  Governor 
when  it  shall  appear  to  him  expedient  to  do  so  upon  petition 
of  citizens  interested. 

By  an  Act,  approved  April  4,  1887,-  it  is  provided  that  the 
Governor  shall  appoint  a  Superintendent  of  Irrigation  for  each 
of  the  water  divisions  of  the  State,  to  hold  office  for  two  years. 
The  duties  of  said  Superintendent  are  prescribed  as  having 
the  general  control  over  the  Water  Commissioners  of  the 
several  districts  within  his  division.  "He  shall,  under  the 
general  supervision  of  the  State  Engineer,  execute  the  laws 
of  the  State  relative  to  the  distribution  of  water,  in  accord- 
ance with  the  rights  of  priority  of  appropriation,  as  established 
by  judicial  decrees,  and  perform  such  other  functions  as  may 
be  assigned  to  him  by  the  State  Engineer."  He  shall  be 
governed  by  the  laws  in  force,  but  shall  have  authorit}-  to 
make  such  other  regulations  to  secure  the  equal  and  fair  dis- 
tribution of  water,  in  accordance  with  the  rights  of  priority 
of  appropriation  as  may  in  his  judgment  be  needed  in  his 
division.     The   Act  provides  that   an   appeal   may  be  made 


evidence,    with   a  view  to  a   just  taken  at   a  previous  trial    of   the 

determination,    uninfluenced     by  case  or  some  branch  of  the  same 

the   proposition    that    the    Court  controversy,  and   also   upon   oral 

below   had  superior    facilities   to  testimony  taken  at  the  trial,  that 

judge  of    the    credibility   of   wit-  the   Appellate   Court   should   not 

nesses.    Bates  vs.  Wilson,  14  Colo  find  a   judgment   for  itself  upon 

140;  Jackson  vs.  Allen,  4  Colo.  268;  the  testimony,  but  should  affirm 

Sieber  vs.  Frink,  7  Colo.  152;  :Mil.  the  judgment  below,   on   finding 

ler  vs.  Taylor,  6.  Colo.  45.  it,    upon    the   whole    record    sus- 

But  it  was  held  in  the  case  of  tained  by  the  evidence. 

Bugh  vs.  Rominger(Colo.),24Pac.  i  General  Laws   of   Colo.    18.S3, 

Rep.   1046,  that  in   an  action  in-  Sees.  1802-1806;  Mills'  .\nn.  vStat. 

volving  the  rights  of  several  par-  Sees.  2440-2457. 

ties   to   the   waters   of    a    certain  -  Session  Laws,   1887,  page  295; 

stream      heard     upon     testimon\-  IVIills'  .\nn.  Stat.  Sees.  2447-2457. 


734  COLORADO.  [§  566,  567 

from  any  order  of  the  Division  Superintendent  to  the  State 
Engineer.  The  Superintendent  must  keep  a  register  of  pri- 
orities within  which  he  shall  enter  and  preserve  certified 
copies  of  the  decrees  of  the  Courts.  All  Water  Commissioners 
must  make  their  reports  to  the  Superintendents,  and  provis- 
ions are  made  as  to  what  those  reports  must  contain. 

§567.  State  Engineer. — Duties  of. — On  March  30,  1889, 
there  was  approved  an  Act  providing  for  the  appointment  of 
a  State  Engineer, ^  whose  duties  are  prescribed  relative  to  the 
subject  of  irrigation  as  follows.  "The  State  Engineer  shall 
have  general  supervising  control  over  the  public  waters  of  the 
State.  He  shall  make  or  cause  to  be  made  careful  measure- 
ments of  the  flow  of  the  public  streams  of  the  State,  from  which 
water  is  diverted  for  any  purpose,  and  compute  the  discharge 
of  the  same.  He  shall  also  collect  all  necessary  data  and 
information  regarding  the  location,  size,  cost  and  capacit\"  of 
dams  and  reservoirs  hereafter  to  be  constructed,  and  like  data 
regarding  the  feasibility  and  economical  construction  of  reser- 
voirs on  eligible  sites,  of  which  he  may  obtain  information, 
and  the  useful  purposes  to  which  the  water  from  the  same 
may  be  put.  He  shall  also  collect  all  data  and  information 
regarding  the  snow-fall  in  the  mountains  each  season,  for  the 
purpose  of  predicting  the  probable  flow  of  water  in  the 
streams  of  the  State  and  publish  the  same."  It  is  also  his 
duty  to  approve  the  plans  and  designs  for  the  construction 
and  repair  of  all  dams  or  reservoir  embankments  which  shall 
be  built  within  the  State,  which  shall  equal  or  exceed  ten  feet 
in  height.  He  shall  also  have  general  charge  over  the  divi- 
sion Water  Superintendents  and  the  district  Water  Commis- 
sioners. He  shall  measure  the  flow  of  the  water  at  the  head 
of  any  ditch,  canal  or  reservoir,  pursuant  to  any  decree  ren- 
dered by  any  Court,  establishing  the  claims  of  priority-.  And 
he  shall  compute  and  arrange  in  tabular  form  the  amount  of 
water  that  will  pass  down  such  ditch  or  canal,  and  shall  fur- 

1  See  L,aws    1889.  p..  371;  Mills'  the  advice  and  consent  of  the  Sen- 
Ann.      Stat.     Sees.      2458,      2469.  ate;  In  re  Question  by  Govenor  12 
It  is  held  that  the  Governor  may  Colo.  400. 
appoint  a  State  Engineer  without 


§  567, 568]  COLORADO.  735 

nish  a  copy  of  anj-  statement  thereof  to  any  Water  Commis- 
sioner or  division  Superintendent  having  control  of  such 
ditch.  He  shall  use  in  all  his  calculations,  measurements, 
records  and  reports,  the  cubic  foot  per  second  as  the  unit  of 
measurement  of  flowing  water,  and  the  cubic  foot  as  the  unit 
of  measurement  of  volume. 

§  568.  Regulation  of  the  Distribution  of  Water.— On  March 
19,  1887,  there  was  approved  "  An  Act  regulatingthe  distribu- 
tion of  water,  the  superintendence  of  canals  or  ditches,  used 
for  the  purposes  of  irrigation,  and  providing  a  penalty  for  the 
violation  thereof."  ^ 

Sec.  I  of  said  Act,  as  amended  in  1893,  provides  as  follows: 
Every  person  or  company  owning  or  controlling  any  canal  or 
ditch,  used  for  the  purposes  of  irrigation,  and  carrying  water 
for  pay,  shall,  when  demanded  by  the  user  during  the  time 
from  April  i,  until  November  i,  in  each  5^ear,  keep  a  flow  of 
water  therein,  so  far  as  may  be  reasonably  practicable,  suf- 
ficient to  reach  the  requirements  of  all  persons  as  are  properly 
entitled  to  the  use  of  water  therefrom,  to  the  extent,  if  neces- 
sary, to  which  such  person  may  be  entitled  to  water,  and  no 
more;  provided,  however,  that  whenever  the  sources  of  supph- 
from  which  the  water  is  obtained  are  not  sufficiently  free  from 
ice,  or  the  volume  therein  is  too  low  and  inadequate  for  that 
purpose,  then  such  canal  shall  be  kept  with  as  full  a  flow  of 
water  therein  as  may  be  practicable,  subject,  however,  to  the 
rights  of  priorities  from  the  streams  or  other  sources  as  pro- 
vided by  law  and  the  necessity  of  cleaning,  repairing  and 
maintaining  the  same  in  good  condition. ^ 

The  Act  provides  that  the  ditches  are  to  be  kept  in  good 
repair  and  ready  to  receive  water  by  April  15,  in  each  year; 
that  a  multiplicity  of  outlets  shall  at  all  times  be  avoided  so 
far  as  practicable;  that  any  person  having  charge  of  any  ditch 
who  shall  wilfully  neglect  or  refuse  to  deliver  water  as  in  the 
Act  provided,  or  any  person  who  shall  prevent  or  interfere 
with  the  proper  delivery  of  water,  shall  be  guilty  of  misde- 

ll^awsiSSy,  p.  304;  Mills' Ann.  Slat.,  Sees.  22S7-2294.     2j^awsiS93, 
p.  299. 


736  COLORADO.  [§  568-570 

meaner;  that  any  Water  Commissioner  who  shall  wilful!}^ 
neglect  or  refuse,  after  being  called  upon  in  accordance  with 
section  1758  of  the  General  Statutes,  to  promptly  measure  water 
from  the  stream  or  source  of  supply  shall  also  be  deemed 
guilty  of  a  misdemeanor.' 

§56^.  Water  for  Domestic  Purposes. — On  April  i,  1891, 
there  was  approved  "An  Act  in  relation  to  water  for  domestic 
purposes."  - 

Section  i  of  which  Act  provides:  "  Water  claimed  and  ap- 
propriated for  domestic  purposes  shall  not  be  employed  or 
used  for  irrigation  or  for  application  to  land  or  plants  in  any 
manner  to  any  extent  whatever;"  and  any  person  claiming 
the  right  to  divert  water  for  domestic  purposes  who  shall  per- 
mit the  water  so  diverted  to  be  applied  for  other  than  domestic 
purposes  to  the  injury  of  any  other  person  entitled  to  use  such 
water  for  irrigation  shall  be  deemed  guilt}'  of  a  misdemeanor. 
Each  day  of  such  improper  application  of  water  shall  be 
deemed  a  separate  offense. 

§  570.  Conveyjince  of  Water  Ria;Iits.— On  April,  7,  1893, 
there  was  approved  "  An  Act  relating  to  the  conveyance  of 
water  rights."  -^ 

Said  Act  provides:  "In  the  conveyance  of  water  rights 
hereafter  made  in  this  State  in  all  cases  except  where  the 
ownership  of  stock  in  ditch  companies  or  other  companies 
constitutes  the  ownership  of  a  water-right,  the  same  formali- 

1  See  also  Act  approved  April  4,  1889,  "To  provide  for  erecting 
1887,  "To define,  prohibit,  punish  head-gates,  waste-gates,  locks, 
and  restrain  extortion  and  other  fastenings,  and  paj-ing  the  ex- 
abuses  in  the  management  of  penses  thereof."  Stat.  1889,  p. 
ditches,  canals  and  reservoirs."  161. 
Stat.  1887,  p.  308.  See  also  Act  approved  April  17, 

See  also  Act  approved   April  4,  1889,     "To    establish   and   define 

1887,  "To  provide  for  the  better  priority  of  appropriation  of  water 

protection  of  water  rights,  and  to  drained  from   sources    other  than 

declare   the   liability   in   damages  natural  streams."     Stat.    1889,  p. 

for     the     infringement    thereof.  215. 

Stat.  1887,  p.  3T2.  2  See  Laws,  1891,  p.  402. 

Also  see  Act  approved  April  17,  3  See  Laws,  1893,  p.  298. 


§  570, 571]  coLOKADO.  737 

ties  shall  be  observed  and  complied  with  as  in  the  conveyance 
of  real  estate." 

It  seems  to  have  been  the  law  in  the  State  before  this  enact- 
ment that  water  rights  and  ditches  were  real  and  not  personal 
property.^ 

III.  Irrigation  Ditch  Corporations. 

§  571.  Corporations.— How  Organized. — Right   of   Way. 

Sees.  308  to  315^  provide  for  the  organization  and  control  of 
ditch  companies. 

Sec.  308  provides  that  whenever  three  or  more  persons  as- 
sociate to  form  a  corporation  for  the  purpose  of  constructing  a 
ditch,  reservoir,  pipe  line  or  any  thereof  for  the  purpose  of 
conveying  water  from  any  natural  source  of  supply  they  shall 
specify  in  their  certificate  "  the  stream,  channel  or  source 
from  which  the  water  is  to  be  taken;  the  point  or  place  at  or 
near  which  the  water  is  to  be  taken  out;  the  location  as  near 
as  may  be  of  any  reservoir  intended  to  be  constructed ;  the 
line  as  near  as  may  be  of  any  ditch  or  pipe  line  intended  to  be 
constructed,  and  the  use  to  which  the  water  is  intended  to  be 
applied."  -^ 

Sec.  309  as  amended  provides  that  any  ditch,  reservoir  or 
pipe  line  company  formed  under  the  provisions  of  that  chapter 
shall  have  the  right  of  way  over  the  line  named  in  the  certi- 
ficate, and  shall  also  have  the  right  to  run  water  from  the 
stream  or  source  named  in  the  certificate  through  its  ditch, 
and  store  the  same  in  any  reservoir  of  the  company  when  not 
needed  for  immediate  use.  But  the  line  proposed  shall  not 
interfere  with  any  other  ditch  or  works  having  prior  rights, 
except  the  right  to  cross  by  pipe  or  flume;  nor  shall  the  water 
of  any  water-course  be  diverted  to  the  detriment  of  any  person 
or  persons  having  priority  of  right  thereto.^ 

1  Yunker  vs.  Nichols,  1  Colo.  -^  As  ainemled  by  .Vet  ajjjjroved 
551;  Schilling  vs.  Rominger,  4  April  9,  1891;  see  Laws,  1891,  p. 
Colo.    100.      See   also   Bailey    vs.       97. 

Platte  D.  Co.,   12    Colo.   234,  as  to         4   As  amended  by   Act    ai)prove(l 
the  right  to  sell  a   right  of  way.  April  19,  1891;  see   Laws,  1891,    p- 

2  Gen.  Stat.  Colo.  1883.  98. 


738  COLORADO.  [§  572 

§  572.  Same.— Assessments. — When  Compelled  to  l\ir- 
iiish  Water. — Sec.  310  provides  that  such  corporation  shall 
have  power  to  make  an  assessment  on  the  capital  stock  thereof. 
But  no  such  assessment  shall  be  made  unless  the  question  of 
making  the  same  shall  first  be  submitted  to  the  stockholders 
of  said  corporation. 

"Sec.  311.  Any  company  constructing  a  ditch  under  the 
provisions  of  this  Act  shall  furnish  water  to  the  class  of  per- 
sons using  the  water  in  the  way  named  in  the  certificate,  in 
the  way  the  water  is  designated  to  be  used,  whether  miners, 
mill  men,  farmers  or  for  domestic  use,  whenever  they  shall 
have  water  in  their  ditch  unsold,  and  shall  at  all  times  give 
the  preference  to  use  of  the  water  in  said  ditch  to  the  class 
named  in  the  certificate;  the  rates  at  which  water  shall  be 
furnished  to  be  fixed  by  the  County  Commissioners  as  soon 
as  such  ditch  shall  be  completed  and  prepared  to  furnish 
water."  ^ 

Sec.  312  provides  that  every  ditch  company  organized 
under  the  provisions  of  the  Act  shall  be  required  to  keep  its 
ditch  in  good  condition  so  that  the  water  shall  not  be  allowed 
to  escape  from  the  same  to  the  injury  of  any  mining  claim, 
road,  ditch,  or  other  property;  and  the  company  must  flume 
the  ditch  so  far  as  necessary  to  protect  property  from  the 
water  of  the  same.^ 

The  priority  of  right  mentioned  Combs  vs.  Agricultural  Ditch  Co., 

in  this  section  is  only  acquired  by  17  Colo.  196. 

priority  of  appropriation.     Coffin  2  it  has  been    held   by  the  Su- 

vs.Left  Hand  Ditch  Co.  6  C0I0.447.  prenie  Court  that  a  ditch  company 

1  This   section    expressly    com-  is  liable   for  damages   caused  by 

mands  ditch    companies,    having  allowing    water   to    overflow    the 

water  in  their  canals  not  taken,  banks  of  its  ditch   and  flood  the 

to  furnish  the   same  to  the  class  lands   of    others.       The    liability 

of  persons  using  it  in  the  manner  arises    from    failing    to    exercise 

named  in  the  articles  of  incorpor-  ordinary   care   in   preventing  the 

alion;  the  declaration  therein  that  escape   of   the   water.      Platte    & 

this   rate   shall    be   fixed    by    the  Denver  Ditch  Co.  vs.  Anderson,  8 

County   Commissioners    must   be  Colo.  131;  Denver  City  Irrigation 

taken      with     the     constitutional  &    Water   Co.   vs.    Middaugh,    12 

condition  attached.     Wheeler  vs.  Colo  443-  Greely  Irrigating  Co.vs. 

North  Colo.  Ir.  Co.,  10  Colo.  595;  House,   14  Colo.  549.     See  Cush- 


§  572, 573]  COLORADO.  739 

A  provision  is  also  made  for  the  consolidation  oi  ditch 
companies  which  derive  their  supply  of  water  for  their  re- 
spective ditches  or  canals  from  the  same  head-gate  or  gates 
or  from  the  same  source  or  sources  of  supply. 

Sec.  314  provides  that  any  company  formed  for  the  purpose 
of  constructing  a  ditch  shall  within  ninety  days  from  the  date 
of  its  certificate,  commence  work  on  such  ditch  and  shall 
prosecute  the  same  with  due  diligence  until  the  same  is  com- 
pleted, and  the  time  of  completion  of  any  such  ditch  shall  not 
extend  beyond  the  period  of  two  years  from  the  time  work 
was  commenced;  and  any  company  failing  in  these  require- 
ments shall  forfeit  all  right  to  the  water  so  claimed,  and  the 
same  shall  be  subject  to  be  claimed  by  any  other  company. 

Sec.  338,  as  amended,  provides  for  the  right  to  condemn 
lands  by  any  corporation  for  the  right-of-way  for  ditches  or 
canals  or  for  any  lawful  purpose  connected  with  the  opera- 
tions of  the  company.^ 

§  573.  Riparian  Rights  in  Colorado.— The  statutes  of 
Colorado  seem  to  entirely  ignore  the  riparian  rights  as  known 
under  the  common  law,  of  persons  owning  lands  through 
which  or  adjoining  which  streams  flow.  In  the  case  of  Cofi&n 
us.  Left  Hand  Ditch  Co.^  it  was  held  that  the  doctrine  of 
prior  appropriation  had  existed  from  the  earliest  appropria- 
tions of  water  within  the  boundaries  of  the  State.  And  it 
was  also  held  that  the  common  law  doctrine  of  riparian  rights 
was  unsuited  to  that  State. ^ 

man   vs.  Highland    D.   Co.,  Colo.  Katon  vs.  Larimer  &  W.  Res.  Co. 

App.,  33  Pac.  Rep.  344,  as   to  lia-  Colo.  App.  33  Pac.  Rep.  278. 

bility  for  pollution.  As  to  injunction  against  corpor- 

1  As  to  the  right  of  stockholders  ations,  see  Farmers'  I.  D.  Co.  vs. 

to  change  point  of  diversion  from  Agricultural  D.  Co.  Ct.  of  App.  32 

one  ranch  to  another,  see  Knowls  Pac.  Rep,  722. 

vs.  Clear  Creek  P.  R.  &  M.  O.  Co.  '^  6  Colo.  443- 

(Colo.),  32  Pac.  Rep.  279.  '^  See  case  of  Hammon.l  vs.  Rose 

As    to    damages    to    individual  11  Colo.  524;  Thomas  vs.  Gmrard, 

stockholders  for  loss  of  crops,  see  6  Colo.  530;    Armstrong  vs.   Lari- 
mer D.  Co.  T   Colo.  App.  49- 


INDEX. 

[The  references  are  to  the  Sections.] 

A. 

ABANDONMENT,  DOCTRINE  OF. 

(See  Appropriation;  Sale  of  Water  Rights.) 
Express  Abandonment,  253. 

By  failure  to  complete  works,  253. 

May  be  made  of  part  of  the  water  all  of  the  time,  254. 

May  be  made  of  all  or  part  of  the  water  part  of  the  time,  254. 

All  water  permitted  to  escape  without  any  attempt  to  recap- 
ture it  is  abandonment,  254. 

Is  made  by  a  verbal  sale,  253. 
Implied  abandonment,  255. 
Abandonment  when  presumed,  257,  258. 

May  be  made  of  part  of  the  water  all  the  time,  254. 

May  be  made  of  all  or  part  of  the  water  part  of  the  time,  254. 
Abandonment  by  adverse  possession,  256.     (See  adverse  possession; 

Prescription.) 
Effect  of  an  abandonment,  259. 
Subsequent  appropriators  may  take  waters  abandoned,  259. 

ABATEMENT. 

(See  Nuisance;  Actions;  Remedies.) 

Abatement  of  nuisance,  333. 
•ACCELERATION. 

(See  Riparian  Proprietors;  Riparian  Rights.) 

Of  flow  of  stream,  61. 

ACCESS. 

(See  Accretion;  Riparian  Rights.) 
Private  right  of,  defined,  64. 
Right  of,  not  lost  by  accretions,  82. 

ACCRETIONS. 
(See  Access.) 
Belong  to  riparian  owners,  82. 


742  INDEX.  * 

ACEQUIAS. 

Construction  and  management  of,  in  New  Mexico,  539-542. 

Construction  and  management  of,  in  Arizona,  533-535- 

Overseers  of,  and  their  duties,  535-541-     (vSee  Arizona;  New  Mexico.) 

ACTIONS. 

(See  Remedies,  Damages,  Injuries.) 

Will  lie  if  positive  injury  is  caused,  249. 

Right  of,  under  common  law,  for  diminution  of  water,  75. 

Legal  and  equitable  relief  in  same,  allowed  when,  322-323. 

At  Law,  324-328, 

For  damages  caused  by  ditches,  324,  325. 

For  damages  for  unlawful  diversion,  326,   330.  331. 

For  injuries  to  ditches,  245. 

Parties  to,  for  damages,  327. 

For  the  abatement  of  a  nuisance,  will  lie  when,  333. 

Will  lie  when  no  actual  damages  are  shown,  when,  321. 

In  Equity,  329-337- 

To  compel  ditch  companies  to  furnish  water,  335. 

To  restrain  unlawful  diversion  of  water,  330,  331,  332. 

For  confirmation  of  bonds  of  irrigation  district,  393. 

For  confirmation  of  organization  of  irrigation  district,  392. 

To  quiet  title  to  waters,  336. 

To  restrain  pollution  of  waters,  252,  350-352. 
(See  Damages;  Remedies;  Pollution;  Diversion.) 

ACT  OF  GOD. 

When  a  defence  for  injury,  314,  315,  324. 
What  is  an,  314,  315,  324. 

ADVERSE  POSSESSION. 

(See  Abandonment;  Prescription;  Abandonment.) 
May  work  an  abandonment,  256. 
Rights  that  may  be  acquired  by,  293. 

ADVERSE  USER. 

(See  Prescription;  Abandonment.) 
What  rights  may  be  acquired  by,  293. 
May  work  an  abandonment,  256. 

AFRICA. 

Irrigation  in,  19. 

Egypt,  10,  II,  19. 
Sahara  Desert,  19. 
French  Algeria,  19. 


INDEX.  743 

AGRICULTURE.     (See  Irrigation.) 

Application  of  Water  for  purpose  of,  5.  7. 
Department  of,  25. 
Report  of,  on  irrigation  in  1886,  25. 
Estimate  of  area  under  cultivation  in  1891  by,  27, 
How  benefited  b}'  irrigation,  i,  9. 

ALGERIA. 
Irrigation  in,  12,  19. 

ALIENS. 

May  appropriate  and  hold  water  rights,  when,  155. 
May  transfer  a  good  title  to  water  rights,  when,  155. 
Grant  of  water  right,  not  an  abandonment  of  the  same,  155. 
(See  abandonment;  appropriation  of  waters.) 

ALLUVION. 

(See  Accretions;  Riparian  Rights.) 
Right  of  riparian  proprietors  to,  82. 

ANCIENTS. 

Skill  of,  17. 
APPLICATION    OF   WATER. 

(See  Beneficial  Use;  Appropriation  of  Waters;   Method  of  Appropri- 
ation.) 

There  must  be  an  actual,  for  a  valid  appropriation,  164, 

Must  be  for  beneficial  use,  150-153. 

Must  be  an  intention  of,  to  a  beneficial  use,  157,  158. 

All  waters  diverted  must  be  applied,  165,  166. 

APPROPRIATION  OF  WATERS. 

(See  Beneficial  Use;  Method  of  Appropriation;  Application  of  Waters; 
Prior  Appropriator;  Water  Rights;  Subsequent  Appropriators; 
Riparian  Owners.) 
No  superior  right  at  common  law  acqi^ired  by,  80,  81. 
As  against  the  United  States,  101-117. 
Essentials  of  an,  150-154. 

Notice  of,  must  be  given  of  intention  to  a])ply  to  a  bent-ficial 

use,  158. 
Method  by  whicli,  is  affected,  155-171. 
Physical  acts  necessary  to  constitute  a  valid,  159. 
Construction  of  works  must  be  comnu-iiced   for,  within  a  reas- 
onable time,  1 59-161. 
Construction  of  works  must  he  completed   for,  within  a  reas- 
onable time,  160,  161. 
There  must  be  an  actual  diversion  of  the  water  to  constitute  a 
valid,  162,  163. 


744  iXDEX. 

APPROPRIATION  OF  WATERS.— a>w/'/«//^fl'. 

There   must  be  actual   application  and  use  of  water  appropri 

ated,  164. 
Water  must  be  applied  to  some  beneficial  use  or  purpose,  161, 

225-230. 

Abandonment  of. 

By  failure  to  complete  works,  253. 

Is  made  by  a  verbal  sale,  253. 

May  be  made  of  all  of  the  water  part  of  the  time,  254. 

Is  worked  by  adverse  possession,  256,  293-297. 

Origin  of  Right  of,  97-121. 

Early  history  of,  97-108. 

Cause  of  the  adoption  of  doctrine  of,  97-99. 

Importance  of,  in  mining  operations,  99-102. 

Common  law  rules  inapplicable  to  the  arid  region,  98,  99. 

Mining  rules  and  customs  of,  102-108. 

First  legislation  upon  the  subject  by  State  of  California,  103. 

Earl}'  Court  decisions  in  California  regarding,  104-107. 

Decisions  regarding,  first  based  upon  doctrine  of  presumption, 
109,  no.     ** 

As  against  the  Government  of  the  United  States,  in. 

Act  of  Congress  of  July  26,   i856,  sanctioning,  113. 

Cause  of  passage  of  Act  of  Congress  of  Juh'  26,  1866,  114. 

Legal  effect  of  the  Act,  115. 

Act  of  Congress  of  July  9,  1870,  sanctioning,  116,  117. 

Acts  of  Congress  subsequent  to  1870,  sanctioning,  1 18-120. 

Doctrine  of,  first  based  upon  presumption,  109,  no. 

"Views  of  the  United  States  Supreme  Court  as  to  cause  of  pas- 
sage of  Act  of  Congress  of  July  26,  1866,  114. 

Rights  Acquired  by  Appropriation  by  one  as  against  other  Appro- 
priators,  173-184. 
General  rights  acquired  by  prior  appropriators,  173. 
Views  of  United  States  Supreme  Court  regarding,  174. 
General  rights  i-.cquired  by  subsequent  appropriators,  175,  176. 
Periodical,  177,  178. 

Rights  acquired  in  surplus,  or  residue  of  water  by,  179,  180. 
Successive,  181. 

Subsequent  appropriation  before  works  of  the  first  are  com- 
pleted, 182. 
Distribution  of  increase  in  volume  of  stream,  183. 
Doctrine  of  relation  as  between  appropriators,  184. 
Rights  relate  back  to  first  step  taken,  when,  168,  169. 
He  who  is  first  in  time  has  the  superior  right,  173,  174. 
True   test   of  the  amount  of  water  actualh-  applied   to  some 
beneficial  use,  161,  225-230. 


INDEX.  745 

APPROPRIATION  OF  WATERS.— Co;i/i;iued. 
As  Against  a  Congressional  Grantee  of  Government,  185-189. 

Appropriation  of  waters  prior  to  grant,  185,  186. 

Court  decisions  on  subject,  187. 

Doctrine  of  relation  as  applied  to  Congressional  grants,  189. 

If  prior  to  grants,  are  paramount  in  right,  185-187. 
As  Against  Settlers  on  Land,  191-220. 

Riparian  rights  in  the  arid  region,  191. 

Government  patent  in  the  absence  of  statute,  192-206. 

Common  law  of  England,  applicable  when,  200,  205,  206. 

Doctrine  of  Vansickle  vs.  Haines,  criticised,  102-106. 

Rights  acquired  by,  prior  to  Acts  of  1866,  192. 
Nature  and  Extent  of  Rights  Acquired  by,  222-270. 

Property  in  ditches  and  canals,  224. 

Amount  of  water  that  may  be  diverted   by  an   appropriation, 
225-229. 

Nature  and  extent  of  right  acquired,  how  determined,  230. 

Special  purpose  often  determines  extent,  231,  232. 

Right  of  change  of  use  of  water,  233,  234. 

Amount  actually  needed  for  purpose  of  appropriation,  235,  236, 

237- 

Appropriator  not  limited  to  first  amount  used,  238,  239. 

Theory  of  equitable  division  of  water  controverted,  240,  241. 

Right  to  remove  obstructions  from  stream  and  ditch,  243. 

Right  to  repair  ditches,  245. 

Right  to  use  natural  bed  of  stream  to  convey  the  water,  246. 

Point  where  property  right  of  appropriator  begins,  247. 

Right  to  natural  flow  of   water  at  head  of  appropriator's  ditch, 
249. 

Point  of  diversion  of  water  may  be  changed,  248. 

Pollution  of  water,  250-252. 

Sale  of  water-rights, 

Sale  of  water,  264-270. 

Capacity  of  ditch  as  measure  of  extent  of  right,  225-230. 
Doctrine  of  abandonment  of,  253-259. 
Doctrine  of  estoppel,  260-263. 

Conveyance  of  water-rights  and  sale  of  water,  264-270. 
Essentials  of,  for  a  beneficial  use,  150-154. 

Change  of   use  by,  does  not  prejudice  rights  acquired,  154,  233,  234. 
Change  of  place  of  use  by,  does  not  prejudice  rights  acquired,  154. 
Title  to  the  soil  unnecessary,  156. 
Who  are  entitled  to  make,  155. 
Aliens  may  make,  155. 
True  test  of  extent  of  the  amount  actually  a])plied  to  some  beneficial 

use,  161,  225-230. 
Water  may  be  rediverted,  when,  by  former,  163. 


746  INDEX. 

APPROPRIATION  OF  WATERS.— Confimied. 

All  the  water  appropriated  must  be  applied  to  some  beneficial  use, 

165,  166. 
Successive  appropriations  may  be  made  of  same  water,  181. 
Restricted  by  amount  actually  needed  for  purpose  of,  235-237. 
Not  limited  to  first  amount  of  water  used,  238,  239. 
Rights  acquired  b)-  riparian  proprietors,  272-279. 
Rights  acquired  of,  by  prescription,  293-297. 
Rights  acquired  under  Mexican  and  Spanish  laws,  289-292. 
Rights  acquired  in  subterranean  waters,  298,  299. 
Ditch  companies,  rights  to,  310,  311. 
Legislation  in  the  various  States  and   Territories   concerning,  338- 

569- 

California,  338-396. 

Nevada,  397-398. 

Washington,  413-424. 

Kansas,  425-442. 

Utah,  443-457- 

North  Dakota,  458-467. 

South  Dakota,  468-477. 

Wyoming,  478-496. 

Oregon,  495-508. 

Idaho,  509-517- 

Nebraska,  518-521. 

Texas,  522-529. 

Arizona,  530-536- 

New  Mexico,  537-547- 

Montana,  548-554. 

Colorado,  555-569- 
APPROPRIATORS. 

(See  Appropriation;  Application  of  Waters;  Water  Rights;  Riparian 

Rights;  Beneficial  Use;  Riparian  Owners.) 
Must  give  notice  of  intent  to  apply  water  to  beneficial  use,  157,  158. 
Physical  acts  necessary  by,  159. 
Must  use  reasonable  diligence  in  completing  works  for  diversion,  159, 

160,  161,  168,  169. 
Pecuniary  inability  of,  will  not  excuse  dela}-,  160. 
Rights  acquired  b}*,  against  others,  172-221. 
May  be  at  same  time  riparian  proprietors,  281-284. 
Rights  acquired  by,  against  other  appropriators,  173-184. 
Rights  acquired  by,  against  Congressional  grantee  of  Government, 

185-189. 
Rights  acquired  bj-,  against  settlers,  191-220. 
Not  limited  to  first  amount  of  water  used,  238,  239. 
Doctrine  of  estoppel  applies  to,  when,  263. 
Must  remove  obstructions  from  stream  and  ditch,  243. 


INDEX. 


747 


APPROPRI ATORS.— Cc'?///////<;(/. 


Are  tenants  in  common  when,  301-306. 

Right  to  use  channel  of  natural  stream  for  ditch,  246. 

Liable  for  injuries  when,  245,  318,  319. 

Right  of  prior,  to  have  water  flow  down  to  head  of  ditch,  248,  249. 

Right  to  an  injunction,  332. 

Prescription  against  rights  of,  294. 

Abandonment  b}-,  253,  254,  257,  258. 

May  be  aliens  when,  155. 

No  superior  right  acquired  at  common  law  by,  80,  81. 

Distribution  in  increase  in  volume  among,  183. 

Doctrine  of  relation  between,  168,  169,  184. 

Rights  as  against  Congressional  grantees,  185-189. 

Rights  as  against  settlers,  191-220. 

Nature  and  extent  of  rights  acquired  by,  272-279. 

Rights  acquired  by,  in  subterranean  waters,  298,  299. 

Theory  of  "  Equitable  Division  "  between,  controverted,  240-242. 

Equity  has  power  to  determine  extent  of  rights  ])etween,  337. 

APPURTENANCE. 
(See  Sale  of  Water  Rights.) 
When  a  water  right  is  an,  to  land,  267. 
A  conveyance  without  reservation  conveys,  267,  268,  269. 
May  be  reserved  if  special  mention  is  made  in  the  deed,  267-270. 
Colorado  rule  as  to  water  rights  being  an,  270. 
California  rule  as  to  water  rights  being  an,  269. 
Utah  rule,  448. 

ARID  REGION  OF  THE  UNITED  STATES. 
Value  of  irrigation  in,  2,  21. 
Population  of,  21. 
States  included  within,  22,  96. 
Statutory  laws  of  States  within,  338-569. 
Census  bulletin  as  to  area  irrigated  in  1889,  26. 
Doctrine  of  Water  rights  in,  96-122. 
Riparian  rights  in,  abolished  or  modified,  96. 
Common  law  inapplicable  in,  98. 

Modification  of  genei-al  rules  of,  by  local  statutory  laws,  170. 
Appropriation  of  waters  by  riparian  proprietors,  272. 
Doctrine  of  riparian  rights,  and  irrigation  in,  273-279. 
Riparian  rights  in  various  States  and   Territories  of.     (See  riparian 
rights.) 

ARID  REGION  DOCTRINE. 

(See  Arid  Region  of  United  States;  .Appropriation  of  Water;  Riparian 

Rights;  Common  Law  Theories.) 
Cause  of  change  from  common  law  to,  97-99. 
Early  history  of,  loo-iio. 


748  INDEX. 

ARID  REGION  DOCTKl'Nn.—  Conimued. 
First  based  upon  miniag  rules  and  customs,  103. 
First  legislation  by  California  sanctioning,  103.  • 
Early  court  decisions  regarding,  104-108, 
First  based  upon  doctrine  of  presumption,  109,110. 
Appropriation  according  to,  as  against  the  United  States.  111,114,  1^5. 

220. 
United  States  Supreme  Court  upon  subject,  114. 
Rights  acquired  under,  between  appropriators,  173-184. 
Rights  acquired  under,  as  against  settleis,  19X-220. 
Rights  acquired  under,  as  against  Congressional  grantees,  185-189. 
Nature  and  extent  of  rights  acquired  under,  222-270. 

ARIZONA. 

(See  Tahua  Nations.) 

Irrigation  by  prehistoric  races  of,  14-17. 

Particular  features  of,  530. 

Modern  irrigation  in,  531. 

Water  Rights  in  general  in,  532, 

Statutory  enactments  of,  532-535. 

Irrigating  canals  and  acequias  in,  534. 

Overseers  of  acequias  and  their  duties,  535. 

Riparian  rights  in,  536. 

All  streams  declared  public  in,  533. 

Construction  of  ditches  and  canals  in,  534. 

Public  Acequias  534. 

Apportionment  of  water  in  times  of  scarcity,  535. 

Obstructions  in  streams  forbidden  when.  533. 

Right  of  way  for  ditches  in,  533,  534. 

ARTESIAN  WATERS. 

(See  Artesian  Wells;  Subterranean  Waters.) 

Investigation  into  by  Congress,  25. 

Statistics  concerning,  33. 

Nature  and  extent  of  rights  acquired  in,  78,  79,  298,  299 

ARTESIAN  WELLS. 

(See  Artesian  Waters;  Subterranean  Waters;  Statutory  Enactments 
Concerning,  in  Part  Second.) 

Irrigation  by,  in  Sahara  Desert,  19. 

Supply  from,  33. 

Statistics  concerning,  33. 

In  Kansas,  436. 

In  North  Dakota,  464. 

In  South  Dakota,  459-476. 
ARTIFICIAL    WATER-COURSES. 

(See  Ditches  and  Canals;  Appropriations  of  Water.) 

Riparian  rights  in,  287. 


INDEX.  749 

ASSESSMENTS. 

(See  Irrigation  Districts;  Corporations.) 

ASSYRIA. 

Irrigation  in,   12. 
AUSTRALIA. 

Irrigation  in,  20. 

AZTECS. 
Prehistoric  works  of,  14-16. 
Irrigation  by,  14-16. 

B. 

BABYLONIA. 

Irrigation  in  Ancient,  12. 
BANKS  OF  RIVERS. 

(See  Riparian  Rights;  Rivers.) 

Defined,  43,  57. 

Banks  essential  to  a  water-course,  39. 

BENEFICIAL    USE. 

(See  Appropriation  of  Water;  Arid  Region  Doctrine.) 

Of  waters,  30. 

Appropriation  must  be  for,  in  order  to  be  valid,  150,  151. 

There  must  be  an  intention  to  apply  to  some,  150. 

Appropriation  may  be  made  by  a  canal  company  if  all  the  water  is 

applied  to,  152,  153. 
All  of  the  water  appropriated   must  be  applied  to,  161,  165,  r66,  225- 

230. 
Failure  to  apply  water  to,  works  an  abandonment,  254. 
Special  use  often  determines  extent  of  appropriation,  231,  232. 
Right  to  change  use,  233,  234. 

BOARD  OF  CONTROL. 

(See  Wyoming.) 
Duties  of,  487-489. 

BONDS. 

(See  Irrigation  District  Law  of  Various  States.) 

Issuance  and  payment  of,  under  California  District  Law,  367-371. 

Proceedings  for  confirmation  of,  393. 

Washington  law  concerning,  428. 

Kansas  law  concerning,  440. 
.   South  Dakota  law  concerning,  472. 

BOUNDARIES. 

.     (See  Irrigation  District  I,aw.) 


750  INDEX. 

BOUNDARIES.— a;«/z««.?rf. 
Of  irrigation  districts,  360. 
Including  and  excluding  territory,  note  360. 
Of  lands  of  riparian  owners,  53-55. 

BREAKING  AWAY  OF  WORKS. 

(See  Ditch  and  Canal  Companies;  Construction  of  Works;  Injuries; 

Damages.) 
Liability  of  ditch  company  for,  318. 

BRIDGES. 

(See  Statutory  Enactments  of  various  States  and  Territories  regard- 
ing. 

c 

CALIFORNIA. 
Irrigation  in,  23. 

Ownership  of  soil  under  fresh  water  navigable  rivers  in,  55. 
Gold  discovered  in,  100,  loi. 
Modern  irrigation  in,  339 
Irrigation  laws  of,  in  general,  340. 
Statutory  laws  governing  irrigation  in,  341-388. 
Rights  of  riparian  proprietors  exist  in,  350. 
An  act  to  promote  irrigation  in,  352. 
Laws  adopted  by  civil  code  of,  351-353- 
Rates  at  which  water  shall  be  sold  at  in,  how  fixed,  353. 
Regulation  and  control  of  ditch  companies,  354-357- 
Appropriated  water  a  public  use,  354. 
Duties  of  county  supervisors  of,  355. 
Rights  acquired  by  eminent  domain  in,  356,  357. 
District  Law  of,  358-388. 

The  "  Wright  Law  "  in,  358. 

Organization  of  irrigation  districts,  359,  360. 

What  lands  to  be  included  in  districts,  360. 

Inclusion  and  exclusion  of  lands,  360,  note. 

Petition  to  Board  of  Supervisors,  what  to  contain,  360. 

Election  for  district,  how  conducted,  361-363. 

Powers  and  duties  of  board  over  district,  364,  365. 

Issuance  of  bonds  of  district,  367-369. 

Bonds  how  paid,  369. 

Assessments  of  real  property,  how  levied  and  collected,  370- 

375- 
Lien  of  assessment,  372. 
Sale  of  property  to  pay  assessment,  374. 
Acquisition  of  land  and  water  rights,  365. 
Contracts  for  construction  of  works,  378,  379. 
Powers  of  Board  of  Directors,  364,  380. 
Payment  of  claims,  379. 


INDEX.  751 

CALIFORNIA.— a?  ;///;/«^rf. 

Limit  of  board  to  incur  indebtedness,  382. 
Apportionment  of  water,  364,  383. 
Leasing  of  water  by  district,  387. 
Disorganization  and  abandonment  of  districts,  388. 
Construction  of  Irrigation  District  Law,  389-396. 
Nature  of  irrigation  districts,  389. 
■     Constitutionality  of  law,  390,391. 
Confirmation  of  organization,  392. 
Confirmation  of  bonds,  393. 

Proceedings  to  include  and  exclude  territory,  394,  395. 
Dissolution  of  irrigation  districts,  3S8,  396. 

CANAL  COMPANIES. 

(See  Ditch  and  Canal  Companies;  Appropriation  of  Water.) 

Essentials  of  appropriation  by,  152,  153. 

Appropriations  by,  valid  if  all  water  used  is  applied  to  a  beneficial 

use,  152,  153. 
Nature,  powers,  duties  and  liabilities  of,  300-319. 
Unincorporated,  301-306. 
Incorporated,  307,  308. 
Powers  of  ditch  and,  309-317. 
Liability  of,  318,  319. 

CANALS. 

(See  Appropriation;  Ditches  and  Canals;  Ditch  and  Canal  Companies; 

Construction  of  Ditches  and  Canals.) 
Are  not  appurtenances  but  land,  124. 
Diversion  by  means  of,  must  be  actual,  162,  163. 
There  must  be  an  actual  user  of  all  the  water  in,  164. 
Liability  for  damages  caused  by,  318. 
Condemnation  of  right  of  way  for,  94,  356,  357. 
(See  right  of  way.) 
Must  be  constructed  with  reasonable  diligence,  160,  161. 

CARTHAGE. 

Irrigation  in  ancient,  12 
CATHOLIC  MISSIONARIES. 

Early  irrigation  by,  in  California,  23. 

CENSUS  BULLETIN. 

Upon  subject  of  irrigation  in  arid  region,  26. 
Upon  subject  of  irrigation  in  sub-humid  region.  26. 
Upon  subject  of  artesian  wells,  33. 

CENTRAL  AMERICA 
Irrigation  in,  14. 


752  INDEX.       - 

CHANGE  OF  USE  OF  WATER. 

(See  Appropriation  of  Water;  Statutory  rule  in  States  and  Territories.) 
May  be  made,  provided  rights  of  others  are  not  injured,  233,  234. 
May  be  made  without  prejudice  to  rights  when,  154. 
Can  not  be  made  if  water  was  not  all  originally  consumed  to  a  use 
where  it  is,  234. 

CHANNEL. 

Of  stream  may  be  used  by  ditch  company  as  part  of  ditch  or  canal,  246. 

Right  to  remove  obstructions  from  channel  of  stream,  243. 

Of  navigable  stream,  belongs  to  the  State,  53-55- 

Of  non-navigable  streams  belongs  to  riparian  owner  when,  56,  57. 

CHINA. 

Irrigation  in,  10,  12. 

SICILY. 

Irrigation  in,  12. 

CITY. 

(See  Irrigation  Districts.) 

May  be  included  in  irrigation  districts,  394,  395. 

CIVIL    LAW. 

Rights  to  water  acquired  under,  16. 

Mexican  and  Spanish  laws  similar  to,    289-292.     (See  Mexican  and 
Spanish  laws.) 

CLASSIFICATION  OF  WATERS. 

See  Chapter  II.,  Sees.  38-39. 
CLEANSING  STREAMS.     (See  Repairs.) 

Rule  in  Colorado  regarding,  568. 
CODES. 

(See  Statutory  Enactments  of  Various  States  and  Territories.) 
COLORADO. 

Early  irrigation  in,  25. 
First  co-operative  work  in,  25. 
Particular  features  of  State,  555. 
Irrigation  in  State,  555. 

Statutory  enactments  regulating  irrigation  in,  556-568. 
Constitutional  provisions  of,  556. 
Provisions  for  State  control  of  water,  559-564. 
Water  districts,  561. 

Water  Commissioners,  and  duties  of,  561. 
Water  divisions,  566. 

Division  Superintendents,  and  duties  of,  566. 
State  Engineer,  and  duties  of,  561. 


INDEX.  733 

COLORADO.—  Continued. 

Adjudication  of  water  rights,  563-565. 
Referees,  hearings  before,  564. 
Appeals,  how  taken  in,  565. 
Regulation  of  distribution  of  water,  568. 

Water  appropriated  for  domestic  purposes  only  cannot  be  used  for 

irrigation,    566. 
Laws  controlling  irrigation  ditch  companies  in,  571,  572. 
Corporations,  when  compelled  to  furnish  water,  572. 
Riparian  rights  in,  573. 
Conveyance  of  water-rights,  570. 

COMMON  CARRIERS. 

(See  Ditch  and  Canal  companies.) 

Ditch  companies  are  not,  316. 

Ditch  and  canal  companies  are  public  carriers  in  Washington,  421. 

COMMON  LAW  OF  ENGLAND. 

(See  Common!  Law  Theories;  Riparian  Rights.) 

When  adopted  by  the  various  States,  98,  99,  201. 

Adopted  in  Vansickle  vs.  Haines,  regardless  of  applicability,  200. 

Upon  laws  governing  waters  discussed,  50-95. 

Governing   subterranean  waters,  78,  79. 

Prior  appropriation  of  water  not  recognized  under,  80,  8r. 

Governing  waters,  inapplicable  in  arid  region,  98,  99. 

COMMON  LAW  THEORIES. 

(See  Common   Law  of  England;  Riparian  Rights;  Appropriation  of 

Water.) 
Nature  and  extent  of  subject  treated  in  volume,  50. 
Property  in  fresh  water  streams  under,  52-55. 
Right  to  use  of  water  for  irrigation  under,  68-76. 
Right  of  diversion  under,  60. 
Irrigation  under,  practically  impossible,  73-77. 
Ordinary  use  of  water  under,  66-74. 
Chancellor  Kent's   opinion,  as  to  the   use  of   water   for   irrigation 

under  74. 
Governing  subterranean  waters,  78-79. 
Accretions  and  relictions,  82. 

Prior  appropriation  of  water  not  recognized  under,  8o-8t. 
Lakes  and  ponds,  ])roperty  in  86-88. 
Public  grant,  89. 
Private  grants  under,  90-91. 
Prescription  under,  92. 
License  under,  93. 
Right  of  eminent  domain  under,  94. 
Inapplicable  to  arid  region,  98-99. 


754  INDEX. 

COMMON  LAW  THEORIES.— Con^imied. 

Adoption  of,  by  States,  adopts  only  so  much  as  is  applicable,  98-99. 
Regulated  wholly  by  municipal  law  of  the  respective  States,  135. 
Nature  of  ownership  in  a  water  course  under,  56. 
Rights  of  riparian  proprietors  in  general  under,  57-58. 
Reasonable  use  of  water,  76-79. 
Access  to  and  from  estate,  64. 
Right  of  fishery  under,  83-84. 

COMPLAINT. 

(See  Remedies;  Actions.) 
COMMISSIONERS,  COUNTY. 

(See  Irrigation  Districts;  Statutes  in  various  States  and  Territories.) 

COMPLETION  OF  WORKS  FOR  DIVERSION. 
(See  Subject  under  various  States  and  Territories.) 
Appropriation  dates  only  from,  when,  168,  169. 
In  California,  348. 

CONDEMNATION. 

(See  Right  of  Way;  Subject  under  various  States  and   Territories; 
Eminent  Domain.) 

Of  water  rights  in  California,  365. 
Not  allowed  in  Nevada,  411. 

CONFIRMATION. 

(See  Irrigation  Districts;  California;  Washington.) 
Proceedings  for,  of  bonds,  393. 
Proceedings  for,  of  organization,  392. 

CONGRESSIONAL  ACTS. 

First  investigation  ordered  by,  25. 

Irrigation  survey  provided  for  by,  in  1888,  25. 

Special  committee  of  investigation  ordered  by,  in  1888,  25. 

Investigation  into  rrtesian  and  underflow  waters  by,  25. 

Act  of  July  26,  1866,  113 — 

Patents  issued  after,  take  subject  to  water  rights,  89,  113,  114. 

Legal  effect  of  Act  of  1866,  115. 

Construction    of  Act    of     1866,  in   Vansickle  vs.   Haines,  and 

Union  M.  &  M.  Co.  vs.  Ferris,   195,  196. 
Criticism  of  above  construction,  198. 

See  general  discussion  on  subject  of  criticism  of  above  con- 
struction, 191-206. 
Act  of   1866,  simply  to  protect   vested  and    accrued  rights  to 

water,  198. 
Patents  of   Government,  since  Act,  take    subject   to  all  prior 
appropriations,  207. 


INDEX.  755 

CONGRESSIONAL  ACTS.— Continued. 

Act  of  July  9,  1870,  amendatory  and  declaratory  to  Act  of  July  26, 

1S66,  116,  117. 
Act  of  March  3,  1877,  to  provide  for  sale  of  desert  land;  118. 
Act  of  March  3,  1S91,  to  provide  for  sale  of  desert  lands,  119. 
Act  of  1889,  112. 
Act  of  1890,  120. 
Future  Acts  of  Congress  upon  the  subject  of  irrigation,  122. 

CONGRESSIONAL  GRANTS. 

(See  Appropriation  of  Water;  Riparian  Rights.) 

Appropriation  of  water  as  against,  185-189. 

Are  subject  to  prior  appropriations  of  water,  1S5,  186. 

United  States  Supreme  Court  on  subject,  187. 

If  first,  then  riparian  rights  may  attach,  188. 

Doctrine  of  relation  concerning,  189. 

Doctrine  of  relation  as  between  conflicting,  190. 

CONNECTICUT. 

Ownership  of  soil  under  fresh  water  navigable  streams  in,  54. 

CONSTITUTIONAL  LAW, 

(See  Irrigation  Districts;  States  and  Territories.) 
Irrigation  District  Law  in  California  is,  390,  391. 
Same  in  Washington  is,  423. 
Governing  water  rights  in  Idaho,  516. 
Governing  water  rights  in  Wyoming,  482,  483. 
Governing  water  rights  in  Colorado,  556. 

CONSTITUTIONAL  PROVISIONS. 

(See  Subject  under  Various  States  and  Territories.) 

CONSTRUCTION  OF  DITCHES. 

(See  Ditch  and  Canal  Companies;  Legal  Remedies;  Damages.) 
Duty  of  canal  companies,  relative  to  314,  315. 
Appropriator  must  construct  ditches  how,  244. 

CONVEYANCE. 

(See  Sale  of  Water  Rights;  Sale  of  Water.) 

CO-P  A  RT  N  K  R  S  H I P . 

(See  Ditch  and  Canal  Companies;  Tenants  in  Common.) 

CORPORATIONS. 

(See  Ditch  and  Canal  Companies;  Ai.propriation  of  Water;  Subject 

as  Treated  Under  Various  vStates  and  Territo.i.'s.) 
Entitled  to  appropriate  water  when,  155. 
In  variouri  States  and  Territories. 


756  INDEX. 

CORPORATIONS.  — Ct^wZ/ww/frf. 

Oregon,  497-507. 
Texas,  524. 
North  Dakota,  462. 
South  Dakota,  472. 
Wyoming,  480. 
New  Mexico,  543. 
Montana,  550-552. 
Nebraska,  519. 
Idaho,  511-513. 
Colorado,  571-572. 

CO-TENANCY. 
(See  Ditch  and  Canal  Companies;  Tenants  in  Common;  Partnership.) 

CUSTOMS. 
(See  Arid  Region  Doctrine;  Appropriation.) 

Of  miners,  102-105. 

Doctrine  of  appropriation  originated  in,  loo-iio. 

D. 

DAMAGES. 
(See  .\ctions;  Injuries;  Legal  Remedies;  Construction  of  Ditches  and 

Canals.) 
No,  necessary  for  an  actionable  injur}-,  321. 
Caused  by  ditches,  324,  325. 

To  prior  appropriators  for  unlawful  diversion,  326. 
Parties  in  an  action  for,  327. 

To  riparian  owners  for  unlawful  diversion,  328. 
For  injuries  to  ditches,  345. 

Injuries  to  ditches,  owner  of  land  liable  in,  245. 
Injuries  to  lands,  owner  of  ditches  liable  in,  245. 

DAMS. 

(See  Construction  of  Ditches  and  Canals;  Riparian  Rights.) 

In  navigable  rivers,  40-42. 

Care  required  in  construction  of,  314,  315. 

Must  be  completed  with  all  reasonable  diligence,  359-361. 

DELAWARE. 

Ownership  of  soil  under  fresh  water  navigable  rivers,  54. 

DESERT  LAND. 
(See  Congressional  Acts.) 

Act  of  March  3,  1877,  for  reclamation  and  sale  of,  118. 
Act  of  March  3,  1891,  for  reclamation  and  sale  of,  192. 


INDEX.  757 

DIWGENCE. 
Ditches  and  canals  must  be  completed  with,  i6o,  i6i. 
Doctrine  of  relation  when  used,  i6S,  169. 

Required  by  statutes  of  vStates  and  Territories.     (See  subject  under 
various  States  and  Territories.) 

DISTRIBUTION  OF  WATER. 

When  volume  of  natural  stream  is  increased,  183. 

Increase  belongs  to  several  appropriators  according  to  priority,  183. 

Same  rule  applies  when  increase  is  by  artificial  means,  183. 

Under  Laws  of  State  Control- 
Colorado,  564 
Wyoming,  490. 
Utah,  448. 
Kansas,  437. 

DISPOSAL  OF  LANDS  AND  WATERS  BY  THE  GOVERNMENT. 
(See  Public  Lands  and  Waters.) 
How  accomplished,  136. 

B}^  reservations  by  Government,  136,  137. 

Donations  for  interior  improvements,  137,  138. 

Grants  to  States  for  school  purposes,  139. 

Grants  to  town  sites,   140. 

Homestead  entries,  143,  144. 

Public  sale  and  private  entry,  143,  144. 

Right  by  military  land  warrants,   143,  144. 

Desert  entry,  143,  144. 
Pre-existing  water  rights  not  effected  by,  141. 
Power  of  Government  to  attach  conditions  to  grant,  147,  148. 

DISTRICT  LAW. 

Of  California,  358-396. 

Of  Washington,  222,  223. 

Of  Nevada,  410,  411. 

Of  Kansas,  439,  440. 

Of  Utah,   453-456. 

Of  North  Dakota,  465,  466. 

Of  South  Dakota,  472-485. 

For  sinking  artesian  wells  in  North  Dakota,  465,  466. 

For  sinking  artesian  wells  in  vSouth  Dakota,  472-475. 

Statute  of,  and  that  of  "State  control"  compared,  492. 

Leasing  water  rights  by  California  districts,  387. 

Disorganization  and  abandonment  of  districts,  388-396. 

DITCHES  AND   CANALS. 

(See  Appropriation;  Ditch  and  Canal  Companies;  Canals.) 
Must  be  completed  without  unreasonable  delay,  160- 161. 


758  INDEX. 

DITCHES  AND  CAN ALS.— a?«//««^af. 

Capacity  of,  not  the  true  measure  of  extent  of  appropriation,  r6i. 

Must  be  kept  clean  and  in  repair,   144. 

Must  be  constructed  carefully,  144. 

Proprietor  must  remove  obstructions  from,  243. 

Owners  of  land  liable  for  injuries  to,  245. 

Owners  of,  liable  for  injuries  by,  318. 

Trespassers  cannot  replace  by  flumes,  245. 

Natural  bed  of  stream  may  be  used  for,  246. 

Construction  of,  governed  by  statutes  of  various  States,  (see  subject 

under  States  and  Territories.) 
When  owners  of  are  tenants  in  common,  301-306. 
DITCH  AND   CANAIy  COMPANIES. 
(See  Ditches  and  Canals;  Appropriation;    Statutes  of  various  States 

and  Territories.) 
General  laws  controlling,  301-319. 
Unincorporated  ditch  and  canal  companies,  301-306. 
Tenants  in  common,  301,  302. 
Incorporated,  307. 
Irrigation  Companies  in  general,  308. 

Power  of  acquiring  rights  of  way,  309. 

Power  of  acquiring  water-rights,  310-312. 

Rights  of  appropriation,  310. 

Acquisition  of  water  rights  by  legislative  grants,  312,  313. 

General  duties  of,  314-317. 

Construction  of  works  by,  314,  315. 

Are  not  common  carriers,  316. 

Are  common  carriers  in  Washington,  421. 

Must  furnish  water  to  consumers,  317. 

Liability  of,  318,  319. 

Liability  of,  under  congressional  acts,  318. 

Liability  for  injury  to  rights  of  stockholders,  319. 

Deemed  public  carriers  in  Washington,  421. 
Statutory  laws  governing  in: 

Washington,   417-421. 

North  Dakota,  462. 

South  Dakota,  470. 

Wj-oming,  480. 

Oregon,  497-505- 

Idaho,  51 1-513. 

Texas,  524. 

DIVERSION. 

(See  Appropriation;  Ditch  and  Canal  Companies;  Riparian   Rights; 

Statutes  of  Various  States  and  Territories.) 
Of  surface  streams  under  common  law,  67,  68. 
Of  subterranean  waters  under  common  law,  78,  79. 


INDEX.  759 

DIVERSION.—  Continued. 

Cannot  be  constructive,  but  must  be  actual,  162,  163. 

Arid  region  doctrine  differs  from  common  law  in  permitting,  162. 

Amount  of  water  that  may  be  diverted  under  an  appropriation,  225- 
229. 

Restricted  to  amount  actually  needed  for  purpose  of  appropriation, 
235-237- 

Extent  of,  limited  by  ditch  at  smallest  point,  not  the  true  measure- 
ment of,  237. 

Point  of,  where  right  of  appropriator  first  begins,  247. 

Point  of,  may  be  changed,  248. 

Of  waters  permitted  for  beneficial  purposes,  by  Mexican  laws,  290, 
291. 

Of  water-course,  from  one  rightfully  entitled  to  use  thereof,  is  a  pri- 
vate nuisance,  332. 

DIVISIONS. 

Water,  in  Wyoming,  484. 
Water,  in  Colorado,  562. 

DIVISION  SUPERINTENDENTS. 
Duties  of,  in  Wyoming,  486-489. 
Duties  of,  in  Colorado,  562. 

DONATIONS. 
(See  Congressional  Acts;  Disposal  of  Lands  and  Waters.) 
By  Government  for  internal  improvements,  137,  138. 
Cannot  be  made  to  the  prejudice  of  pre-existing  water-rights,   137, 
138,   141. 

DRAIN  AG  Iv. 
{See  Appropriation  of  Water;  Beneficial  Use.) 
Diversion  of  water  for,  is  not  an  appropriation,  150,  151. 

EASEMENT. 

(See  Eminent  Domain;  Right  of  Way.) 
Right  of  public  to,  for  navigation,  42. 
Right  of  way  for  ditch  is  not  an,  224. 

EGYPT. 

Ancient  knowledge  of  art  in,  lo,  11,  12. 
Modern  irrigation  in,  19. 

EJECTMENT. 

Will  not  lie  to  recover  a   water-cour.se,  56. 
(See  Actio  U.S.) 


760  INDEX. 

ELECTION 

(Irrigation  District  Law;  Statutes  of  the  Various  States  concerning.) 

In  California: 

For  organization  of  irrigation  districts,  360,  361. 

Of  oflEicers  for  districts,  362,  363. 

To  authorize  the  issuance  of  bonds,  367. 

To  authorize  reduction  of  bonded  indebtedness,  386. 

In  Kansas: 

For  organization  of  irrigation  districts,  439. 
For  issuance  of  bonds,  440. 

In  Utah: 

For  organization  of  irrigation  districts,  453. 

In  North  Dakota: 

Organization  of  irrigation  districts,  465. 

In  South  Dakota: 

Organization  of  irrigation  districts,  471. 

To  issue  bonds  for  constructibn  of  works,  472. 
Of  water  masters  in  Idaho,  514. 
Of  overseers  in  Arizona,  535. 
In  New  Mexico,  of  directors  of  acequias,  541. 

EMINENT  DOMAIN. 

(See  Right  of  Way;  Ditch  and  Canal  Companies;  Corporations.) 

Common  law  rule  of,  94. 

Water  rights  may  be  taken  under,  in  California,  365. 

Rights  under  code  in  California,  356. 

Construction  of  California  code,  relative  to  357. 

Common  law  theory  of,  94. 

ENGLAND. 

Accession  of  Territory  from,  by  treaty  in  1849,  29. 

ENTRY. 

Of  land  defined,  144. 
EQUITABLE  DIVISION. 
(See  Appropriation  of  Waters;  Beneficial  Use.j 
Theory  of  controverted,  240-242. 
Basey  vs.  Gallagher,  construed  relative  to,  241. 
Supreme  Court  of  Idaho  upon  the  subject,  242. 

EQUITABLE  RELIEF. 
(See  Action;  Remedies.) 
Discussion  of,  329-337. 

Injunction  where  no  actual  damages  are  shown,  329. 
Riparian  proprietors  entitled  to  injunction  when,  330,  331. 


INDEX.  761 

EQUITABLE  KULIUF. —Cofiiinued. 

Appropriator's  right  to  injunction  when,  332. 
For  restraining  nuisance,  333. 
Trespass,  equity  will  restrain  when,  334. 
Mandamus,  336. 

EQUITY. 

Has  no  power  to  determine  extent  of  rights,  337. 

Of  settler  relates  back  to  very  inception  of  title,  215-220. 

Also  so  held  by  the  Land  Department,  214-216. 

Has  jurisdiction  where  no  actual  damages  are  shown,  329. 

May  enjoin  unlawful  diversion,  330-332. 

Will  restrain  a  nuisance,  333. 

Will  restrain  a  trespass  when,  334. 

Mandamus,  action  will  lie  for  when,  335. 

Action  to  quiet  title  in,  336. 

Has  power  to  determine  extent  of  right,  337. 

ESTOPPEL. 

By  Deed,  263. 

General  doctrine  of,  263. 

In  Pais. 

Doctrine  of  respecting  water  rights,  260-262. 
Definition  of,  260. 

There  must  be  actual  misrepresentation,  260-262. 
Riparian  proprietors  estopped  when,  287. 

EXTENT  OF  RIGHT. 

(See  Appropriation  of  Water;  Beneficial  Use.) 

To  amount  of  water  that  may  be  diverted,  225-232. 
Limited  by  amount  actually  applied   to  some  beneficial   use  or  pur- 
pose, 230-232. 
How  determined,  230. 

Often  limited  by  special  purpose  to  which  water  is  applied,  231-233. 
Discussion  on,  223-270 
Acquired  by  appropriators,   223-254. 
Acquired  by  riparian  owners,  272-292. 
Acquired  by  prescription,  293-297. 
Acquired  in  subterranean  water-courses  in  west,  29S,  299. 

EXTRAORDINARY  USE. 

(See  Ordinary  use;  Common  Law  Theories;   Rijiarian  Rights.) 

As  defined  by  common  law,  65. 

Use  of  water  for  irrigation  is,  67-74. 


762  IKDEX. 

FARMING  NEIGHBORHOOD. 

Defined,  395. 

FISHERY. 

Public  and  private  rights  to,  under  common  law,  83,  84. 
Act  to  preserve  in  Wyoming,  481. 

FLORIDA. 

Ownership  of  soil  under  fresh  water  navigable  rivers,  55. 

FORFEITURE. 

(See  Abandonment  ) 

FRANCHISE. 

Right  to  charge  for  water  is  a,  in  California,  354. 
Right  to  charge  for  water  in  Idaho  is,  516. 
Use  of  water  for  sale  is,  in  Oregon,  49!^. 

FRANCE. 

Irrigation  in,  2,  12. 

Modern  irrigation  in,  20. 

Acquisition  of   territory  from,  by  the  United  States,  128. 

G. 

GANGES  CANAL. 
Description  of,  18. 

GEOLOGICAL  SURVP:Y. 
Provisions  for,  25-31. 

GEORGIA. 
Ownership  of  soil  under  fresh  witer  navigable  rivers,  54. 

GRANTS. 

(See  Congressional  Acts;  Appropriation  of  Water;  Riparian  Rights.) 
Rights  under,  acquired  from  Mexico,  2S9-292. 
Subject  to  conditions  annexed,  147,  148. 
Subject  to  pre-existing  water  rights,  1S5-189. 

GREECE. 

Irrigation  in,  11. 

HEAD-GATES. 
(Statutory  Enactments  of  the  Various  States  and  Territories;  Law  of 
State  Control.) 


INDEX, 


763 


HEREDITAMENT. 

Right  of  appropriator  to  have  water  flow  to  the  head  of  his  ditch  is 

an  incorporeal,  247. 
A  water-right  is  a  corporeal,  223. 

Right  of  a  riparian  proprietor  to  the  flow  of  the   stream  is  a  corpo- 
real, 56. 

HISTORY. 

Of  change  from  common  law  to  arid  region  doctrine,  100-108. 
Of  water-rights  first  held  under  mining  rules  and  customs,  102. 
Of  first  legislation  upon  subject  by  California.  103. 
Of  knowledge  of  irrigation  in  Egypt,  10. 
Of  irrigation  in  various  countries,  10-17. 

HOMESTEAD  ENTRY. 
(See  Public  Lands.) 
Rights  attach  under  when,  144. 
Rights  under,  how  acquired,  143. 

1. 

IDAHO. 

Particular  features  of,  509. 

Irrigation  in,  510. 

Prior  appropriators  protected  in,  512. 

General  statutory  enactments  in,  511-516. 

Right-of-way  for  ditches  in,  511-513. 

State  control  of  distribution  for  irrigation,  514. 

Criticism  of  laws  of,  515. 

Constitutional  provisions  of,  516. 

Right  to  collect  compensation  for  w-ater  supplied  a  franchise,  516. 

Riparian  rights  in,  517. 

Election  of  water  masters  in,  514. 

ILLINOIS. 

Ownership  of  land  under  fresh  water  navigable  rivers,  54. 

INCAS. 
Ancient  irrigation  of,  13. 

INCORPORATED  DITCH  AND  CANAL    COMPANIES. 
(See  Ditch  and  Canal  Companies.) 
In  general,  307,  308. 

Powers,  duties  and  liabilities  of,  307-317. 
Liability  for  injuries  to  stockholders  rights,  319. 

INDIA. 
Irrigation  in,  ro-12. 


764  INDEX. 

INDIA.— Co/ifinued. 

Canals  and  aqueducts  in,  4-12. 
Under  British  rule,  18. 

INDIANA. 

Ownership  of  land  under  fresh  water  navigable  rivers  in,  54. 

INDIANvS. 
(See  Public  Lands;  Treaties.) 
Title  of  occupancy  by,  133. 
Treaties  with,   133. 
Entitled  to  appropriate  waters,  135. 
May  maintain  an  action  for  diversion,  135. 

INJUNCTIONS. 

(See  Legal  Remedies;  Equitable  Relief;  Actions.) 

Will  lie  when  no  actual  damages  are  shown,  329. 

Riparian  proprietors  right  to,  for  unlawful  diversion,  330,  331. 

Appropria tor's  right  to  injunction,  332. 

To  restrain  nuisance,  333. 

INJURIES. 

(vSee  Actions;  Damages;  Corporations;  Statutory  Enactments  of  Va- 
rious States  and  Territories;  Legal  Remedies.) 

To  ditches,  owner  of  land  liable,  245. 

To  lands,  owner  of  ditches  liable  for,  245. 

Not  always  necessary  to  show  actual  damages  in  order  for  an  action 
to  lie  for,  321. 

Liability  of  ditch  companies  for,  318. 

INTENT. 

(See  Appropriation  of  Water;  Beneficial  Use.) 
Must  be  actual  to  apply  to  some  beneficial  use  or  purpose,  156. 
Notice  of,  to  appropriate,  157,  158. 

Must  be  consummated  by  an  application  of  all  water  appropriated  to 
some  useful  purpose,  225-230. 

IOWA. 

Ownership  of  soil  under  fresh  water  navigable  rivers,  54. 

IRRIGATION. 

(See  Appropriation  of  Water;  Beneficial  Use.) 

Art  of,  4. 

Definition  of,  i. 

Early  American  common  law  doctrine  governing,  72. 

Empire  of,  21. 

English  doctrine  of,  70,  71. 


INDEX.  765 


IRRIGATION.—  Continued. 


Extent  to  which  water  may  be  diverted  for,  by  riparian  proprietor  in 

the  arid  region,  275. 
Future  of  the  United  States,  36. 
In  California,  338-396. 
Historj-  of,  10-17. 
How  beneficial,  6,  7. 

Its  practice  under  common  law  rule  impossible,  73-76. 
Later  American  common  law  doctrine,  73-75. 
Natural  or  artificial  want,  9. 
Nature  and  importance  of,  2. 
Past  and  present,  1-36. 
Progress  of,  4-25. 

Present  condition  of,  in  different  States  and  Territories,  35. 
Rapid  growth  of,  between  1886  and  1893,  25. 
Right  to  use  the  water  for,  under  common  law,  68-76. 
Same — Chancellor  Kent's  opinion,  74. 

Riparian  proprietors'  right  to  divert  for,  in  the  West.  273-279. 
To  what  best  adapted,  6,  7. 
Theor}'  of,  5. 
Value  to  civilization,  3. 
What  is,   1-9. 

IRRIGATOR. 

(See  Irrigation.) 

Must  consider  legal  rights,  <S. 

IRRIGATION  COMPANIES. 

(See  Ditch  and  Canal  Companies;  Corporations.) 

Unincorporated,  301-306. 

Private  incorporated  companies,  307,  308. 

Powers  of,  309-313. 

Duties  of,  314-317. 

Liability  of,  318,  319. 

IRRIGATION    DISTRICTS. 
In  California,  358-396. 
In  Nevada,  410,  411. 
In  Washington,  422,  423. 
In  Kansas,  439,  440. 
In  Utah,  453-455- 
In  North  Dakota,  465,  466. 
In  South  Dakota,  472-475. 

IRRIGATION  SURVEY. 
Congressional  .\ct  for,  120. 


766  INDEX. 

ITALY. 

Irrigation  in,  2-12. 
Modern  irrigation  in,  20. 

J 

JOINDER  OF  PARTIES. 

(See  Actions;  Legal  Remedies.) 
Eor  damages,  327. 
JOINT  TENANTS. 

(See  Tenants  in  Common.) 
JURISDICTION. 
(See  Public  Lands,) 

Of  State  and  United  States  over  public  lands  and  waters,  145,  145. 
Of  appropriation  of  water  upon  the  public  domain,  145. 
After  title  has  passed  from  the  Government,   146. 
Lex  loci  sitae,  146. 
Of  Equity,  329-337. 

Where  no  actual  damages  are  shown,   329. 

For  unlawful  diversion,  332. 

For  nuisance,  333. 

For  trespass,  334, 

Mandamus,  335. 

To  quiet  title,  336. 

To  determine  extent  of  right,  337. 

K. 

KANSAS. 
Ownership  of  land  under  fresh  water  navigable  rivers,  55. 
Particular  features  of,  425. 
Irrigation  in,  426. 

General  statutory  enactments  of,  427-438. 
Appropriation  and  use  of  water  in,  429-441. 
Right  of  way  for  ditches,  434. 
Irrigation  districts  of,  439-441. 
Artesian  wells  in,  436.  437. 
Water  rates  in,  438. 
Riparian  rights  in,  442. 
Reservoir  sites  in,  434. 

Abandonment  of  water-rights  how  worked,  432. 
Construction  of  works,  435. 
Interference  of  works,  441. 
Purchase  of  water-rights  how  efiEected,  440. 
Issuance  of  bonds,  440. 

KENTUCKY. 
Ownership  of  land  under  fresh  water  navigable  rivers,  54. 


INDEX.  767 


LAKES. 

(See  Riparian  Rights;  Appropriation  of  Waters.) 

Great  inland,  38. 

Definition  of,  38. 

Distinguished  from  rivers,  38-46. 

Great  navigable,  regarded  as  public,  38. 

In  England,  ail  considered  private,  46-86. 

And  Ponds,  46,47. 

Small,  when  navigable,  46. 

Riparian  rights  attach  to,  when,  58-88. 
Properly  in,  in  the  United  States,  87,  88. 

LEASING  WATER. 
For  mechanical  purposes,  by  irrigation  districts  of  California,  387. 

LEGISLATION. 

(See  Congressional  Acts.) 
By  Congress,  113,  116-121. 
First,  by  California  upon  subject,  103. 

Of  various  States  and  Territories    (see   statutory   enactments  under 
States  and  Territories,  Part  Two.) 

LEGISLATIVE   GRANTS. 
(See  Public  Lands;  Grants.) 

Power  to  grant  water-rights  to  dit:;h  co-npinies,  312,  313. 
Cannot  give  rights  injuring  those  vested,  312,  313. 
By  Congress,  134-144. 

LICENSE. 
Common  law  rules  of,  93. 
Revocable  when,  93. 
Of  Government  presumed,  109,  no. 
Of  Government  prior  to  Act  of  1S66,  ratified  by  that  Act,  202-206. 

LIEN  FOR  WATER  RENT. 
In  South  Dakota,  473. 
In  Oregon,  504. 
In  Texas,  526. 
In  Utah,  554. 

LIMITATIONS,  STATUTE  OF. 
(See  Prescription.) 
Length  of  time  of,  for  acquisition  of  water-rights,  293-297. 

LOGGING. 
Streams  must  be  kept  unobstructed  for,  42. 


768  INDEX. 

LOMBARDY. 

Irrigation  in,  12,  16. 

LOUISIANA. 

Purchase,  126-128. 

M. 

MAINE. 

Ownership  of  soil  under  fresh  water  navigable  rivers,  54. 

MANDAMUS. 

(See  Actions;  Remedies.) 

Action  will  lie  for  when,  335. 

When  ditch  companies  will  be  compelled  to  furnish  water  by,  317. 

MANUFACTURES. 
(See  Beneficial  Use.) 

Have  equal  rights  with  others  to  appropriate  water,  150. 
Act  to  lease  water  to,  in  California,  387. 

MARYLAND. 

Ownership  of  soil  under  fresh  water  navigable  rivers,  54. 

MASSACHUSETTS. 

Ownership  of  soil  under  fresh  water  navigable  rivers,  54. 

MEASUREMENT  OF  WATER. 

In  Utah,  448. 
In  Wyoming,  491. 
In  Montana,  551. 
In  Colorado,  563. 

METHOD  OF  APPROPRIATION. 
(See  Appropriation  of  Water.) 
How  effected,  149-171. 

MEXICAN  LAW. 
(See  Civil  Law.) 

Nature  of  water  rights  acquired  under,  289-292. 
Legal  effects  of  laws  of  the  U.  S.  upon  water  rights  acquired  under, 

292. 
Diversion  perhiitted  under,  for  useful  purposes,  290,  291. 

MEXICO. 

Ancient  irrigation  in,  14,  15. 
Cession  of  Territory  by,  in  1848,  129. 

MICHIGAN. 
Ownership  of  soil  und  ir  fresh  water  navigable  rivers,  54. 


INDEX.  769 

MILITARY  LAND  WARRANT  ENTRIES. 

(See  Public  Lands.) 

Rights  under,  attacli  when,  143,  144. 
MINING  RULES  AND  CUSTOMS. 

(See  Arid  Region  Doctrine.) 

Early  importance  of,  in  the  Pacific  States,  99-105. 

Origin  of,  102-105. 

Sanctioned  by  the  State  legislature,  103. 

Recognized  by  Act  of  Congress,  of  July  26,  i835,   113,  114. 

Earl"  adoption  of,  in  California,  102. 

Water  rights  at  first  rested  entirely  upon,  102. 

MINING. 
(See  Beneficial  Use.) 
Early  history  of,  in  California,  97-100. 
Rules  and  customs  of,  102-105. 
(See  Arid  Region  Doctrine,  §  96-122.) 

MINNESOTA. 
Ownership  of  soil  under  fresh  water  navigable  rivers,  55. 

MISSISSIPPI. 
Ownership  of  soil  under  fresh  water  navigable  rivers,  54. 

MISSOURI. 

Ownership  of  soil  under  fresh  water  navigable  rivers,  55. 

MONTANA. 

Particular  features  of  State,  548. 

Irrigation  in,  548. 

General  statutory  enactments  in  549-5i3- 

Controversies  regarding  water  to  be  determined  by  date  of  appro- 
priation, 550. 

Rights  of  persons  and  corporations  to  water,  550. 

Right  of  appropriation,  551. 

Requisites  for  an  appropriation  in,  551. 

Sale  of  water,  552. 

Rights  of  way,  553. 

Condemnation  proceedings  for,  in,  553. 

Measurement  of  water,  551. 

Riparian  rights  in,  554. 
MORMONS. 

First  irrigation  in  arid  west  by,  23,  24. 
MUNICIPAL   CORPORATIONS. 

Irrigation  districts  are  not,  3S9. 

May  be  included  in  irrigation  dis'.r'cts,  39^,  395. 


770  INDEX. 

N, 

NATURAL  WANTS. 

(See  Common  Law  Theories.) 

Use  of  water  for  irrigation  may  be,  9. 
NAVIGABLE  WATERS. 

(See  Common  Law  Theories;  Riparian  Rights.) 

What  are,  40. 

Those  actually  navigable  are  navigable  in  law.  40. 

Right  to  the  use  of,  41. 

Obstruction  of,  41. 

Those  subject  to  ebb  and  flow  of  tide  belong  to  Crown  or  State,  51. 

State  succeeded  to  title  of  Crown,  51. 

Rule  in  England  as  to  fresh  water,  as  to  ownership  of  soil  under,  53. 

Rule  in  United  States  as  to  ownership  of  fresh  waters,  54. 

NAVIGATION. 

(See  Common  Law  Theories. ) 
Right  of,  how  acquired  42. 
Paramount  to  all  other  rights,  41. 

NEBRASKA. 

Particular  features  of,  51b. 

Water  may  be  acquired  by  appropriation  in,  519. 

Irrigation  in,  51S. 

Statutory  enactments  in,  519,  520. 

Water  rights  in  general  in,  519. 

Right  of  way  for  ditches  in,  520. 

Condemnation  proceedings,  520. 

Riparian  rights  in,  521. 

Appropriation  must  be  for  a  beneficial  use,  519. 

NEGLIGENCE. 

(See  Actions;    Injuries;    Remedies;    Construction  of  Ditches;  Ditch 

and  Canal  Companies;  Act  of  God.) 
Appropriator  liable  for,  in  construction  and  repair  of  ditches,  243.244. 
Owner  of  land  liable  for,  in  injuring  ditches  of  others,  245. 
Degree  of,  necessary  to  create  liability  for  damages,  325. 

NEVADA. 

Ownership  of  soil  under  fresh  water  navigable  rivers  in,  55. 

Particular  features  of,  397. 

Irrigation  in,  39S. 

Right  of  way  in,  400. 

Statutory  enactments  in,  399-409. 

Condemnation  proceedings  in,  400. 

Waters  of  State  declared  to  be  public  property  in,  407. 

Jurisdiction  of  District  Court,  406. 


INDEX,  .  771 

NEVADA.—  Continued. 

Proceedings  to  determine  the  ]>riority  of  right  in,  408. 

Storage  reservoirs  in,  409. 

Board  of  reclamation  and  internal  improvement,  402. 

Irrigation  district  law  in,  410. 

Condemnation  of  water  rights  not  permitted  in,  411. 

Rent  of  water,  404. 

Prevention  of  waste  in,  409. 

Reclamation  districts  in,  401. 

Riparian  rights  in,  412. 

Surveyor  General  and  his  duties,  401. 

Taxes,  how  assessed  and  collected,  404. 

Bonds  issued,  how,  404 

Use  of  water  regulated,  how,  405, 

NEW   ENGLAND   STATES. 

Non-tidal  rivers  in  are  private  property,  54. 
NEW  JERSEY. 

Ownership  of  soil  under  fresh  water  navigable  rivers,  54. 

NEW  MEXICO. 

Ancient  irrigation  in,  14.  15. 

Particular  features  of,  537.  ' 

Irrigation  in,  538. 

Statutory  enactments  of,  539-547- 

Jurisdiction  of  justices  of  the  peace,  539. 

Public  acequias,  539. 

Irrigation  preferred  in,  539. 

Private  acequias,  540. 

Condemnation  of  land  for  acequias,  540. 

Labor  upon  acequias,  542. 

Directors  of  acequias  in,  541. 

Organization  and  powers  of  irrigation  corporations,  543-545- 

Ditch  property  exempt  from  taxation,  547. 

Riparian  rights  in,  547. 

Overseers  of  acequias,  542. 

Labor  on  acequias,  542.  ♦ 

Management  of  acequias,  542. 

NEW  YORK. 
Ownership  of  soil  under  fresh  water  navigable  rivers,  54. 

NILE. 

(See  Egypt.) 

History  of  art  of  irrigation  on,  10,  1 1. 

NON-NAVIGABLE  RIVERS  AND  WATlvR-COURSEvS. 
(See  Rivers;  Waters;  Water-Courses.) 


772  INDEX. 

NON-NAVIGABLE  RIVERS  AND  WATER-COVRSUS—Cofiitnued. 
Of  what  they  consist,  43,  44. 
They  need  not  flow  continuovisly,  44. 

NON-RIPARIAN    LANDS. 
(See  Riparian  Riglits;  Common  Law  Theories.) 
Ripirian  proprietor  has  no  right  to  irrigate,  284. 
Appropriator  of  waters  may  irrigate,  256. 

NON-USER. 
(See  Appropriation  of  Water;  Riparian  Rights.) 
Rights  of  appropriator  lost  bj',  150,  164. 
Rip  iriau  rights  not  lost  by,  58,  65. 

NORTH  CAROLINA. 

Ownership  of  soil  unJer  fresh  water  navigable  rivers  in,  54. 

NORTH  DAKOTA. 

Particular  features  of,  458. 

Irrigation  in,  459. 

Right  to  use  witer  in,  defined,  460. 

Generil  stitulory  enactments  of  Territory  of,  430-462. 

Right  of  way  for  ditclies,  460. 

General  statutory  enactments  of,  State  of,  463,  464. 

Abandonment  of  right,  461,  462. 

Irrigation  district  law  of,  465,  465. 

Powers  of  board  of,  466. 

Riparian  rights  in,  467. 

Organization  of  ditch  companies,  462. 

Water  to  be  furnished  to  what  class  of  persons,  462. 

Regulation  of  artesian  wells  in,  464. 

Construction  of  artesian  wells  in,  464. 

Assessments  in,  466. 

Condemnation  for  right  of  way,  466. 

Location  of  water-right  how  made  in,  461. 

Tax  how  assessed  and  collected,  463. 

NOTICE. 
(See  Appropriation  of  Water;  Relation.) 

Of  intent  to  approi)riate  waters  for  beneficial  use  necessary,  157,  158. 
Form  of  notice  immaterial,  157,   158. 
Is  evidence  of  possession,  158. 
Rule  as  to,  in  California,  346. 

Of  itself,  not  sufficient  to  hold  appropriation,  158. 
Appropriation  relates  back  to  when,  168,  169,  184. 
Statutory  enactments  concerning   (see  subject  under  various  States 
and  Territories). 


isDEx.  773 

NUISANCE. 
(See  Actions;  Remedies;  Pollution;  Unlawful  Diversion.) 
Equity  will  restrain  when,  333. 
Diversion  of  a  water-course,  from  one  entitled  to  the  use  thereof  is  a, 

332. 
Pollution  of  water  is  a,  when,  350-352. 

o. 

OBSTRUCTIONS. 

(See  Appropriation  of  Water;  Appropriators.) 

Right  to  remove  from  stream  and  ditch,  243. 

Right  to  remove,  devolves  upon  owner  of  ditch  and    not  upon  owner 

of  land,  243. 
Must  be  removed  without  damage,  243. 

ORDINARY  USE. 

(See  Common  Law  Theories;  Riparian  Rights.)  * 

Distinguished  from  extraordinary  use,  66-77. 
Defined,  65. 

OREGON. 

Ownership  of  soil  under  fresh  water  navigable  rivers  in,  55. 

Particular  features  of,  495. 

Irrigation  in,  496. 

Use  of  water  for  sale  in,  is  a  franchise,  498. 

General  statutory  enactments,  497-507. 

Water  must  be  supplied  to  whom,  498. 

Organization  and  powers  of  corporations  in,  497-504. 

Notice  of  appropriation,  499. 

Riparian  rights  in,  508. 

No  tract  of  land  to  be  burdened  with  more  than  one  ditch,  502. 

Lien  for  water  rents  in,  504. 

Condemnation  of  land  for  right  of  way,  500. 

Condemnation  of  riparian  rights  in,  500. 

Works  must  be  completed  when,  501. 

Constitutionality  of  Act  of  1891,  507. 

Natural  stream  may  be  used  for  ditch,  502. 

Damages,  503. 

Distributing  ditches,  503. 

OVERFLOW. 

(See  Injuries;  Remedies;  Construction  of  Ditclies.) 

OVERSEER. 

Of  acequias  in  Arizona,  535. 

Of  acequias  in  New  Mexico,  541. 


774  INDEX. 

p. 

PAROL. 

(See  Abandonment;  Sale  of  Water  Rights.) 

Sale  of  ditches  and  water  rights  bj',  and   abandonment  when,  253- 
255- 

PARTIES. 
(See  Remedies;  Actions.) 
To  action  for  damages,  327. 

PATENT. 

(See  Patentee  of  Government;  PuVdic  Land.c.) 

PATENTEE  OF  GOVERNMENT. 
(Public  Lands.) 

Rights  of,  prior  to  Act  of  1866,  in,  11^,  192. 
^In  absence  of  statute,  succeeded  to  what   interest  in  waters,  192-206, 
Held   by  some    authorities   to   take   land   and  waters  regardless   of 
prior  appropriation,  before  Act  of  1866,  193-197. 
Authorities  discussed,  195,  196,  199. 
Comments  on  above  rulings,  197. 

Vansickle  vs.  Haines,  a  leading  case  on  above  subject,  195. 
Criticism  of  Vansickle  vs.  Haines,  198. 
Act  of  July  26,   1866,  passed  simply   to  protect  vested   and  accrued 
water  rights,  198. 
Authorities  discussed,  199-200. 
Doctrine  of  relation  regarding  rights  of,  208-220. 

Authorities  holding  that  right  relates  back  to  date  of  patent, 
210,  212-213. 
Authorities  holding,  rights   relate  back  to  very  inception  of  title  of, 
2x5-220. 

PENALTIES. 
(See  Statutory  Enactments  Upon  Subject  of  Various  States  and  Ter- 
ritories.) 
For  Unlawful  Interference  with  Waters  or  Works: 
In  Washington,  419. 
In  Kansas,  441. 
In  Oregon,  504. 

PENNSYLVANIA. 
Ownership  of  land  under  fresh  water  navigable  streams  in,  54. 

PERCOLATING  WATERS. 

(See  Subterranean  Waters;  Water  Courses;  Appropriation  of  Water.) 
Distinguished  from  subterranean  waters,  48,  49. 


INDEX.  775 

PERCOLATING  WATERS.— Co;iti?ii/ed. 
Definition  of,  49. 
Nature  and  extent  of  water  acquired  in,  in  arid  region,  298,  299. 

PERIODICAL  APPROPRIATIONS. 
(See  Appropriation  of  Water;  Nature  and  Extent  of  Right.) 
Are  those  measured  by  time,  177,  178. 

No  difference  in  principle  from  those  measvired  by  volume,  177,  178. 
Authorities  discussed,  178. 

PERSIA. 

Irrigation  in,  12. 
PETITION. 
(See  Irrigation  District  Laws  of  various  States  and  Territories.) 
What  to  contain  for  Organization  of  Irrigation  Districts: 
In  California,  360. 
In  Nevada,  410. 
In  Washington,  422. 
In  Kansas,  439. 
In  Utah,  453. 
In  North  Dakota,  465. 
In  South  Dakota,  471. 

PHYSICAL  ACTS. 

(See  Appropriation  of  Water.) 

Necessary  to  constitute  an  appropriation,  159. 

Notice  must  be  given  of  intention,  159. 

Surveys  must  be  made,   159. 

Ditches  and  canals  must  be  dug,  159. 

Water  must  be  actually  diverted  and  applied  to  some  beneficial  use, 
159- 
PLACE  OF  USE. 

(See  Appropriation  of  Water;  l^xtent  of  Right.) 

May  be  changed,   154-233. 

See  Statutory  Enactments  upon  subject  of  various  vStates  and  Terri- 
tories.) 

PLANTS. 

Transpiration  of,  5. 

IIow  irrigation  is  beneficial  to,  3-7. 

To  what,  irrigation  is  best  adapted,  7. 

POINT  OF  DIVERSION. 

(See  Appropriation  of  Water;  Extent  of  Right.) 

The  place  where  property  rights  of  appi'opriators  begin,   247 

May  be  changed,  when  rights  of  others  are  not  injured,  248. 


776  INDEX. 

POLLUTION. 

Of  a  water  course  under  common  law,  62. 

There  must  be  no,  if  the  prior  appropriators'  rights  are  materially 

injured  thereby,  250-252. 
By  poisoning  of  waters,  252. 

PONDS. 

(See  Lakes;  Rivers;  Riparian  Rights.) 

Characteristics  of,  47. 

Distinguished  fr<  m  lakes  only  in  size,  47. 

Property  in,  in  England,  86. 

In  United  States,  78-88. 

PRE-EMPTION  ENTRY. 
(See  Public  Lands.) 
Rights  under,  attach  when,  142,  144. 

PRESCRIPTION. 

(See  Adverse  Possession;  Abandonment.) 

Common  law  rules  of,  92. 

A  right  acquired  by,  works  an  abandonment,  256. 

Nature  and  extent  of  water  rights  acquired  in  arid  region  by,  293 

As  against  appropriators  of  water,  294. 

As  against  riparian  owners,  295. 

As  against  any  other  right,  297. 

PRIOR  APPROPRIATIONS. 

(See  Ayprcpriaticn  of  Water;  Appropriators;  Arid  Region  Doctrine. 

Not  recognized  under  common  law,  80,  81. 

Patentees  take  subject  to  when,  135,  191,  206. 

Protected  to  the  extent  of  use,  173,  174. 

United  States  Supreme  Court  on  the  subject.  174. 

As  against  the  United  States  and  its  grantees;  iii,  114,  185,  220. 

Rights  acquired  as  against  settlers  191-220. 

Ri  ghte  acquired  as  against  Congressional  grantees,  185-189. 

Nature  and  extent  of  rights  acquired  under,  222-270. 

PRIOR  APPROPRIATORS. 
(See  Appropriators;  Appropriation  of  Water;  Arid  Region  Doctrine.) 
Have  the  best,  and  sometimes  the  exclusive  right  to  water,  173,  174. 
United  Stales  Supreme  Court  on  subject,  174. 
Rights  of,  fixed  by  the  extent  of  their  appropriation,  175. 
Have   a  right   to  insist  that   the  water  flow  unpolluted  if  they  are 

materially  injured  thereby,  250-252. 
May  loose  their  rights  by  abandonment,  253-259. 


i^DEX.  777 

PRIOR   AVVROPRIATORS.— Conn ;iufd. 

And  riparian  proprietors  at  the  same  time,  281-284. 

Right  of,  to  injunction,  332. 

Right  to  damages  for  unlawful  division,  338. 

PROPERTY  RIGHTS  IN  DITCHES  AND  CANALS. 
(See  Ditches  and  Canals;   Appurtenance;   Ditch  and   Canal   Compa- 
nies.) 
A  water  ditch  or  canal  is  land,  224. 

PRESUMPTION. 

(See  Appropriation;  Arid  Region  Doctrine. 

Early  doctrine  of  arid  region  based  upon,  109,  110. 

PRIVATE  GRANTS. 

(See  Public  lands;  Grants;  Sale  of  Water  Rights  Appurtenances.) 
Reservation  in,  must  be  clearly  expressed,  90,  gi. 

PUBLIC  CORPORATIONS. 

(See  Irrigation  Districts.) 
Irrigation  districts  are,  389. 

PUBLIC  DOMAIN. 

(See  Public  Lands;  Appropriation.) 
Definition  of,  124. 

PUBLIC  GRANT. 

Crown  cannot  abridge  or  destroy  private  rights  by,  89. 
State  may  make  to  individuals,  89. 

Of  lands,  in  the  absence  of  legi.'^lation,  89,  185,  191-206. 
Of  water-rights  cannot  be  made  to  the  injury  of  prior  vested  rights, 
312,  313. 

PUBLIC  LANDS  AND  WATERS. 
(See  Public  Domain;  Appropriation;  Disposal  of  Lands  and  Waters.) 
Definition  of,  124. 
United  States  the  owner  of,  124. 
Power  of  the  United  States  to  acquire,  125,  126. 
How  the  United  States  acquires,  127  129. 

Government  takes,  subject  to  vested  property  rights  therein,  130-132. 
Disposal  of,  134-144. 

Rights  of  Government  to  disjjose  of,  134. 
Donation  of  lands  for  internal  improvement,  137,  138. 
Cannot  be  made  to  prejudice  of  pre-existing  riglits,  137,  138. 
School  lands,  139. 
Cease  to  be  public,  when  entered  by  settlers,  217,  218. 


778  INDEX. 

PUBLIC  SAIJE  AND  PRIVATE  ENTRIES. 

(See  Disposal  of  Lands;  Public  Lands  and  Waters.) 
Rights  under,  attach  when,  143. 

PURPOSE  OF  APPROPRIATION. 

(See  Appropriation  of  Water;  Notice;  Nature  and  Extent  of  Rights.) 
Must  be  set  forth  in  notice,  157, 158. 
Must  be  for  beneficial  use,  150-153. 
Often  limits  extent  of  right,  231,  232. 

QUIET  TITLE. 

(See  Actions;  Remedies.) 
Action  to.  to  water-rights,  336. 

R 

RAINFALL. 

In  State  of  Nevada,  397. 

REASONABLE  DILIGENCE. 

(See  Appropriation  of  Water;  Appropriators.) 

Must  be  used  to  complete  works  of  appropriation.  160,  i<Si. 

A  question  of  fact  for  the  jury,  160,  161. 

Must  be  used  in  application  of  water,  165. 

If  used,  rights  in  water  relate  back  to  first  step,  184. 

If  not  used,  rights  do  not  relate  back  to  first  step,  i<S4. 

REASONABLE  USE. 

(See  Riparian  Rights;  Common  Law  Theories.) 

Must  be  made  of  water  by  riparian  proprietors,  under  common  law, 

76,  77- 
By   riparian  proprietors  in  arid  region,  276-280. 

RECLAMATION. 

In  Nevada,  401-404. 

Act  of  Congress  of  March  3,  1891,  for,  T19. 

RE-DIVERSION. 

May  be  made  when  water  has  been  returned  to  the  stream.  163. 

RELATION,  DOCTRINE  OF. 

(See  Appropriation;  Patentee;  Congressional  Grants. I 
Appropriation  relates  back  to  first  step  when,  168,  169.    184. 
As  between  appropriators,  184. 
Appropriation  does  not  relate  back  when,   184 


INDKX.  779 

RELATION,  DOCTRINE  0¥.—  Co>ifiniit-ii. 

As  applied  to  Congressional  grants,  189. 

As  between  conflicting  Congressional  grants,  190. 

As  applied  to  rights  of  patentees  of  Government,  208-220. 

Rights  of  patentees  relate  back  to  the  very  inception  of  title,  215-220. 

Ruling  of  Land  Department  upon  subject,  215,  216. 

Ruling  of  the  Supreme  Court  of  the  United  vStates,  217. 
Fixed  by  statute  in  California,  348. 

RELICTION. 

(See  Accretion;  Riparian  Rights.) 

Land  relicted  belongs  to  riparian  owner,  82. 

REMEDIES. 
(See  Damages;  Injuries;  Actions.) 
General  discussion  regarding,  320-337. 

Not  always  necessar)'  to  show  actual  damages  to  be  entitled  to  rem- 
edy, 321. 
In  general,  320-323. 

Legal  and  equitable  relief  in  same  action.  320-323. 
Remedies  at  law,  324-328. 
Equitable,  329-337- 

For  damages  caused  by  ditches,  324,  325. 

For  damages  to  prior  appropriators,  by  unlawful  diversion,  326. 
Parties  in  an  action  for  damages,  327. 
Of  riparian  owners  for  unlawful  diversion,  328. 
Injunction,  when  no  actual  damages  are  shown,  329. 
Riparian   proprietors,   right   to   injunction    for   unlawful    diversion, 

330.  331- 
Appropriators'  right  to  injunction  for  unlawful  diversion,  332. 
For  nuisance,  equity  will  restrain  when,  333. 
For  trespass,  equity  will  restrain  when,  334. 
Mandamus,  action  will  lie  for  when,  335. 
Action  to  quiet  title,  336. 
Equity  has  power  to  determine  extent  of  rights,  337. 

REPAIR  OF  DITCHF;S. 

(See  Construction  of  Ditches;  Ditch  and  Canal  Companies.) 

Owners  must  keep  ditches  in  repair,  244. 

Liable  for  negligence  for  not  keeping  in  repair,  244. 

RESERVATIONS. 

(See  Sale  of  Water  Rights;  Appurtenance.) 

Of  water  rights  must  be  clearlj'  expressed  in  deeds,  90,  91. 

Of  lands  by  Government  a  disposal  of,  136. 

Water  rights,  unless  reserved,  are  appurtenant  to  tlic  l.iiid,  267-3hq. 


780  INDEX. 

RESERVOIRS. 

(See  subject  in  various  States  and  Territories  ) 
Conservation  of  waters  by,  31,  32. 
Act  to  provide  for  in  Nevada,  410. 

RHODE  ISLAND. 

Ownership  of  soil  under  fresh  water  navigable  rivers.  54. 

RIGHT  OF  WAY. 

(See  Condemnation;  Eminent  Domain.) 
Condemnation  proceedings,  and  how  obtained  in: 

California,  356,  357,  365,  366. 

Nevada,  400. 

Washington,  420. 

Kansas,  423. 

Utah,  449. 

North  Dakota,  466. 

Wyoming,  481. 

Oregon,  500,  505. 

Idaho,  513. 

Nebraska,  519. 

New  Mexico,  545. 

Montana,  553. 

Colorado,  567. 

Arizona,  533,  534. 

RIPARIAN  PROPRIETORS. 

(See  Appropriation;  Riparian  Rights;  Coininon  Law  Doctrine;  Reme- 
dies.) 
On  great  lakes,  own  only  to  the  shore,  38. 
Nature  of  ownership  in  a  watci-course,  56. 
Riparian  lights  of,  57-75. 

Right  to  tlie  flow  of  the  stream  as  it  is  wont  by  nature,  59,  65. 
Have  equal  rights  upon  the  stream,  59. 
Right  of  to  divert  water,  under  common  law,  60. 
Have  no  tight  to  obstruct  flow  of  stream,  61. 
Have  no  right  to  accelerate  current,  61. 
May  insist  that  stream  remain   unpolluted,  62. 
Cannot  divide  stream  without  consent  of  all,  63. 
Right  of  access  to  and  from  the  State  is  a  property  right.  64. 
Right  to  the  use  of  water  of  stream,  65-76. 

Ordinary  use,  65. 

Extraordinary  use,  conniion  to  all,  67. 

F^or  irrigation  under  common  law,  68-76. 
Reasonable  use  of  water,  76. 

Prior  appropriation  of  water  not   recognized  under  common  law,  80- 
81. 


INDEX.  781 

RIPARIAN  TROVRmrORS.— Confuted. 

Miscellaneous  rights  of,  82. 

Rights  in  water  in  absence  of  statute  of  Government,  192-206. 

Nature  and   extent  of   rights   acquired  to   water  by,  in  arid  region, 

272-292. 
Appropriation  by,  in  arid  region,  272-279. 

Extent  to  which  water  may  be  diverted  b\s  for  irrigation,  275. 
What  is  considered  a  reasonable  use  by,  in  arid  region,  276-279. 
And  prior  appropriators  at  same  time,  281-284. 
Have  no  right  to  irrigate  non-riparian  lands,  282. 
Sale  of  water-rights  by,  285. 

Mere  possession  of  lands  give  no  riparian  rights,  286. 
Estopped  when,  288. 

Right  to  injunction  for  unlawful  diversion,  330,  331. 
Right  to  damages  for  unlawful  diversion,  328. 

RIPARIAN  RIGHTS. 

(See   Riparian   Owners;    Appropriations;    Common    Law    Doctrine; 

Remedies.) 
Do  not  depend  upon  ownership  of  soil  under  water,  57. 
In  general,  57-76. 

Depend  upon  actual  contact  with  the  water  of  the  Streams,  58. 
May  exist  in  a  person  who  is  not  owner  in  fee,  58. 
Are  property  rights,  58. 

To  flow  of  stream  as  it  is  wont  by  nature,  59-61. 
To  ordinary  flow  of  stream,  is  a  property  right,  59. 
Of  diversion  of  stream  under  common  laws,  60. 
To  flow  of  stream,  undeteriorated  in  quality,  62. 
To  whole  stream,  63. 
Of  access  to  and  from  the  estate,  64. 
Of  riparian  owners  to  ute  of  water,  65-76. 
To  ordinary  and  extraordinary  u.ses  of  water,  66,  67. 
Use  of  water  for  irrigation  under  common  law,  68,  76. 
To  accretion  and  reliction,  82. 
In  fishery,  83,  84. 

Under  jurisdiction  of  State  and  Territory,  where  located,  145,  146. 
Still  exist  in  some  portions  of  arid  region,  191. 
Controversies  as  to,  and  rights  by  appropriation,  191-221. 
Not  adopted  where  inapplicable  to  needs  and  conditions  of  locality, 

2or. 
Subsequent  to  law  of  1S66,  207. 

To  use  of  water  for  irrigation  in  arid  west,  273-279. 
In  artificial  water-courses,  287. 
Prescription  against,  295,  296. 
In  California,  350. 
Nevada,  412. 


782  INDEX. 

RIPARIAN    RIGHTS.—  Continued. 
Washington,  424. 
Kansas,  442. 
Utah,  457- 
North  Dakota,  467. 
South  Dakota.  477. 
Arizona,  536. 
Wyoming,  494. 
Oregon,  508. 
Nebraska,  521. 
Texas,  529. 
New  Mexico,  547. 
Colorado,  573. 
Montana.  554. 

RIVERS. 

(See  Water-Courses;  Lakes  and  Ponds. 

Large,  34. 

Definition  of,  39. 

Distinction  from  lakes  and  ponds,  43. 

And  water-courses  non-navigable,  43-49. 

Property  in  fr»sh  water,  52. 

Ownership  of  soil  under  fresh  water  navigable  rivers,  52-55. 

s. 

SALE  OF  WATER. 

(See  Ditch  Companies;  Franchise.) 

After  diversion,  266. 

Compelled  by  ditch  companies  when,  317. 

SALE  OF  WATER-RIGHTS. 

(See  Sale  of  Water;  Abandonment;  Appurtenance.) 

Mere  verbal  sale  works  an  abandonment,  253. 

May  be  conveyed  separate  from  the  land  when,   264,  ^65. 

By  riparian  proprietors,  285. 

Statutory  laws  regulating  in  California,  566. 

Statutory  laws  regulating  in  Colorado,  570. 

In  Montana,  552. 

SAHARA  DESERT. 
Irrigation  in,  19. 
Artesian  wells  in,  19. 

SCHOOL  LANDS. 
(See  Public  Lands.) 
How  granted  by  the  Government,  139. 


INDEX.  783 

SEA. 

Definition  of,  38. 

SETTLERS. 

(See  Public  Lands;  Disposal  of  Lauds;   Riparian  Rights;  Appropria- 
tion of  Water;  Patentee  of  Government.) 
General  rights  of,  191-222. 
Nature  and  extent  of  rights  of.  272-28S. 

SIRHIND  CANAL. 

Description  of.  18. 
SOIL  AND  WATER. 

(See  Appropriation  of  Water;   Pul)lic  Land.) 

Ownership  of,  distinguished,  135. 

Title  to  soil  unnecessary  to  an  appropriation,  156. 

SOUTH  AMERICA. 

Irrigation  in,  13. 
SOUTH  CAROLINA. 

Ownership  of  land  under  fresh  water  navigable  rivers,  54. 
SOUTH  DAKOTA. 

(See  North  Dakota.) 

Particular  features  of,  46S. 

Irrigation  in  State,  468. 

Territorial  laws  of,  469. 

Statutory  enactments  of  State,  47c. 

Corporations  in,  470. 

Right  of  way,  how  secured  in,  470. 

Artesian  wells  in,  470-476. 

Surplus  water,  how  disposed  of,  470. 

Organization  of  irrigation  districts  in,  471-476. 

Township  districts,  how  organized,  471. 

I/ien  for  water  rights  m,  473. 

Title  to  property,  473. 

Riparian  rights  in,  477. 

.State  engineer,  duties  of,  471. 

Bonds,  how  voted,  472. 

Construction  of  works,  472. 

Conveyance  of  water,  473. 

Taxes,  how  assessed  in,  474. 

Reservoirs  in,  474. 

Distribution  of  water,  475. 

Water  must  not  be  wasted,  476. 

County  districts,  how  organized,  47(1. 

Location  of  wells,  476. 

Duties  of  Contit\  CommissioiH  is,   17b. 


784  INDEX. 

SPAIN. 

Irrigation  in,  20. 

Acquisition  of  territory  from,  128. 

SQUATTERS. 

(See  Public  Lands;  Riparian  Rights.) 
On  lands  gain  no  riparian  rights,  286. 

STATE  CONTROL  OF  W.\TERS. 
In  Idaho.  516. 
In  Colorado,  556-564. 
W3'oming,  582-593. 
Arizona,  532-535. 
Rules  of,  and  irrigation  district  law  compared,  492. 

STATE  ENGINEER. 

(See  Subject  Under  Various  States  and  Territories.) 
Appointment  of  and  duties  of  in  Wyoming,  485. 
Appointment  of  and  duties  in  Colorado,  563. 

STATUTES. 
(See  States  and  Territories.) 

Of  the  United  States,  upon  the  subject  of  waters,  113,  116,  ri8-i2i. 
Of  California,  3^1-396. 
Nevada,  399-412. 
Washington,  415  424. 
Kansas,  427-442. 
Utah,  445-457- 
S^uth  Dakota,  46>-477- 
North  Dakota,  469-477. 
Wyoming,  480-494. 
Oregon,  497-5-)S. 
Idaho,  511-517. 
Nebraska,  519-521. 
Arizona,  532-535. 
Texas,  523-529. 
New  Mexico,  539-547. 
Montana,  549  554. 
Colorado,  556-572. 

STATISTICS. 

Of  irrigation  in  Utah,  24. 

Of  area  of  land  under  irrigation  in  arid  and  sub-humid  regions,  26. 

Estimate  of  Djpartuieiit  of  Agriculture,  27. 

Of  artesian  wells  used  in  irrigation,  33. 


INDEX.  786 

STORAGE  RESERVOIRS. 
Adoptions  of  systems  of,  31,  32. 
lyCgal  contemplation  of,  32. 
Additional  agricultural  development  by,  32. 
In  Nevada,  409-411. 

STREAMS. 

(See  Rivers;  Water  Courses.) 

SUB-HUMID  REGION. 

Census  bulletin  as  to  irrigation  in,  26. 
Extent  of,  458. 

SUBSEQUENT  APPROPRIATORS. 

(See  Appropriation;  Prior  Appropriations.) 

Rights  of  in  general,  175-182. 

May  take  water  subject  to  rights  of  prior  appropriator,  175. 

Are  prior,  to  all  who  are  subsequent  to  themselves,  175. 

Maj'^  insist  that  prior  appropriators  confine  themselves  to  extent  of 

their  appropriation,  175,  176. 
Authority  of  the  Supreme  Court  of  the  United  States  upon  subject 

175- 

May  appropriate  surplus  or  residue,  179,  180. 

May  appropriate  all  or  part  of  the  water  in  the  stream,  when  not  used 
by  first,  177. 

May  make  successive  appropriations,  181. 

Have  right  to  appropriate  the  water  before  works  of  first  are  com- 
pleted, 182. 

SUBTERRANEAN  WATERS. 
(See  Percolating  Waters.) 
Underflow  of  surface  streams,  44-48. 
Distinguished  from  percolating  waters.  48-78. 
Two  distinct  classes  of,  48. 

Right  of  diversion  of,  under  common  law,  78,  79. 
Nature  and  extent  of  rights  acquired  in,  in  arid  region,  298,  299. 

SUBTERRANEAN  WATER  COURSES. 
(vSee  Subterranean  Waters.) 
Defined,  48. 

SUCCESSIVE  APPROPRIATIONS. 

(See  Appropriation  of  Water;  Appropriators.) 

Only  limited  by  size  of  stream,  and  amount  of  water  taken  out.  175. 

Same  water  may  be  used  by  different  parties,  181. 

Regard  must  be  had  to  jirior  appropriators'  rights,  181. 


786  INDEX. 

SUPERINTENDENTS. 
Of  water  divisions  in  Wyoming,  and  their  duties,  486-489. 
Of  water  divisions  in  Colorado,  and  their  duties,  562. 

SURPLUS  OR  RESIDUE  OF  WATER. 

(See  Appropriation  of  Water;    Nature  and  Extent  of  Rights.) 
May  be  appropriated  by  subsequent  appropriators,  179,  180. 
Authorities  discussed,  180. 
Surplus  water  must  be  returned  to  natural  stream,  280. 

SURVEY. 

Under  the  United  States,  54. 

Riparian  owners,  on   fresh  water   navigable  rivers,   take  at  least  to 
water's  edge,  54,  55. 

T. 

TAHUA  NATIONS. 

(See  New  Mexico;  Arizona.) 
Irrigation  by,  14-16. 

TENANTS  IN  COMMON. 

(See  Ditch  and  Canal  Companies.) 
When  ditch  owners  are,  301-306, 

One  tenant  can  protect  the  whole  property  against  the  acts  or  threat- 
ened acts  of  wrong-doers,  301. 
And  copartners  in  water  rights  distinguishe<l.  302,  303. 

TENANTS  OF  LAND. 

Right  to  injunction  for  unlawful  diversion  by,  331. 

TENNESSEE. 

Ownership  of  soil  unWer  fresh  water  navigable  rivers,  54. 

TERRITORY. 

(See  Public  Lands;  Treaties.) 
.\cquisition  of,  127-133. 

TEXAS. 

Particular  features  of,  522. 

Irrigation  in,  522. 

As  between  appropriators,  first  in  time  first  in  right,  523. 

Statutory  enactments  of,  523-52S. 

Water  may  be  diverted  in,  523. 

Domestic  use  of  water  preferred,  523. 

Corporations  and  powers  of,  in  524. 

Relation,  523. 

Lien  upon  crops  for  water  right,  526. 


INDEX.  78Y 

TEXAS. —  Continued. 
Construction  of  statutes  of,  528. 
Riparian  rights  in,  539. 
Completion  of  works,  523. 
Right  of  way  how  obtained,  524. 
Sale  of  water,  525. 
Penalties,  525. 
Court  decisions  upholding  right  of  irrigation,  527. 

TIDE  WATERS. 
(See  Common  Law  Theories;  Classification  of  Waters.) 
Definition  of,  51. 
Owned  by  the  Crown  or  State,  51. 

TITIvE. 

(See  Public  Land;  Disposal  of  Lands;  Patentees  of  Government.) 
Government  takes  title  to  land,  subject  to  rights  of  property  therein 

130-132. 
Indian,  of  occupancy,  133. 
Title  to  grantees  from  government  acquire  good  title,  134. 

TOWN  SITES. 

(See  Public  Land;  Disposal  of  Lands.) 
Disposal  of  lands  by  Government  for,  140. 

TOLTECS. 

Irrigation  by,  14-16. 

TREATIES. 

(See  Public  Lands.) 

With: 

France  in  1803,  for  purchase  of  Louisiana,  128. 
Spain  in  1821,  for  purchase  of  Floridas,  128. 
Mexico,  1848,  for  purchase  of  Pacific  highlands,  129. 
England,  1846,  for  the  Northwest,  129. 

TRESPASS. 
(See  Actions;  Remedies.) 
Equity  will  restrain  when,  334. 

XJ. 

UNINCORPORATED  DITCH  COMPANIES. 

(See  Ditch  and  Canal  Companies;    Injuries;    Damages;   Tenants  in 
Common.) 
,      Laws  governing  and  controlling;  301-306. 


788  INDEX. 

UNINCORPORATED  DITCH  COMPANIES.— CowZ/wm^^. 

Relation  of  persons  not  defined  by  special   agreement  regarded  as 

tenants  in  common,  301. 
Rights  of  majority  in  interest  in,  304. 
Powers  of  individual  members  limited  in,  304. 
Authority  of  individual  members  of,  305. 
Liability  and  rights  of  individual  members  of,  306. 

UNITED  STATES. 

(See  Public  Land;  Acquisitions  of  Lands;  Treaties;  Disposal  of  Lands; 

Patentee  of  Government.) 
Power  of  to  acquire  lands,  125,  126. 
How  acquires  lands,  127-129. 

Takes  lands  subject  to  rights  of  property  therein,  130-132, 
Disposal  of  public  lands  and  -waters  by,  134-144. 
Jurisdiction  over  public  lands  and  waters,  145,  146. 
Power  of,  to  annex  conditions-  to  grants,  147,  148. 
Irrigation  in,  21-36. 

USE  OF  WATER. 

(See   Common   Law    Theories;    Riparian   Rights;    Appropriation  of 

Water;  Nature  and  Extent  of  Right.) 
Ordinary,  as  defined  by  common  law,  65,  66. 
Extraordinarj',  65. 

Usefulness  of  water  always  relative,  66. 
Reasonable,  discussed,  77. 

Use  of  all  water  appropriated  must  be  actual,  164. 
Any  beneficial,  will  maintain  a  valid  appropriation,  150-151. 
May  be  changed  without  losing  rights,  233,  234. 
Use  must  be  reasonable,  by  riparian  proprietor  in   arid  region,  272- 

279. 

UTAH. 

First  irrigation  in,  23,  24. 

Statistics  of  irrigation  in,  24. 

Particular  features  of,  443. 

Irrigation  in,  444. 

General  statutes  of,  445-452. 

Selectment  of  counties,  powers  of,  445. 

Priority  of  water  rights  in,  445-450. 

Primary'  water  rights  in,  446. 

Secondary  water  rights  in,  447. 

Measurement  of  water,  448. 

Irrigation  district  law  in,  453-456. 

Officers  of  district,  how  elected  and  duties  of,  454. 

Taxes,  how  assessed,  454. 

Taxes  voted,  a  lien  on  land,  454. 


INDEX. 

UTAH.— Continued. 

Lakes  and  ponds  in,  455. 

Right  of  way  and  condemnation  for,  456. 

Exemption  from  taxation  when,  448. 

Riparian  rights  in,  457. 

Water  rights  in,  when  personal  property,  448. 

Water  rights  in,  when  real  property,  448. 

Waste  not  permitted,  448. 

Preferences,  448. 

V. 

VERMONT. 
Ownership  of  soil  under  fresh  water  navigable  rivers,  54. 

VIRGINIA. 

Ownership  of  soil  under  fresh  water  navigable  streams  in,  54. 

w. 

WANTS. 

(See  Common  Law  Theories.) 

Natural  or  artificial  defined,  9,  65. 

Water  for  irrigation  under  common  law,  an  artificial,  69. 

WASHINGTON. 

.  Particular  features  of,  413. 
Irrigation  in,  414. 

Ditch  and  canal  companies  are  public  carriers  in,  421. 
General  statutory  enactments  in,  415-421. 
Water,  how  appropriated,  416. 
Notice  in,  416. 

Commencement  and  completion  of  work,  416. 
Relation  of  rights,  416. 
Forfeiture  of  right,  416. 

Right  to  appropriate  water  for  irrigation,  417. 
Proceedings  for  adjudication  of  water  rights  in,  421. 
Erection  of  machinery  to  raise  water,  419. 
Condemnation  proceedings  in, 420. 
Right  of  way,  how  acquired,  420. 
Irrigation  district  law  in,  422-424. 
Constitutionality  of  district  law,  423. 
Unit  of  measurement  of  water  in,  424. 
Riparian  rights  in,  424. 

Condemnation  proceedings  of  riparian  rights,  420. 
Ditch  companies  deemed  public  carriers,  421. 
Proceedings  for  adjudication  of  water  rights  in,  421. 


789 


790  INDEX. 

WASTE. 

(See  Nature  and  Extent  of  Rights;  Appropriation  of  Water.) 

Suppression  of,  30. 

There  must  be  no  waste  of  water,  165-167. 

WATER. 

(See  Classification  of  Waters.) 

Scarcity  of  supply  of,  28. 

Increase  in  supply  of,  29. 

Suppression  of  wasting,  30,  165-167. 

Beneficial  use  of,  150,   151. 

By  change  of  use  no  rights  are  lost,  154. 

Separated  from  original  source  of  supply,  is  personal  property,  223. 

Amount  thatmay  be  diverted  underan  appropriation,  225-229. 

Equitable  division  of,  controverted,  240-242. 

Sale  of  after  diversion,  266-270. 

WATERS. 

Classification  of,  27-49. 
Table  of  divisions  of ,  37. 
Public  or  navigable,  38-42. 
Source  of  title  of,  124-133. 
Government  disposal  of,  134-144. 
Jurisdiction  of  public  lands  and,  145-148. 

WATER-COURSES. 
(See  Waters.) 

May  sometimes  be  dry,  39. 
Subterranean,  44-48, 
Non-navigable,  43-49. 
What  constitutes,  43-45. 
Defined,  45. 

Nature  of  ownership  in,  55. 
No  action  will  lie  to  recover,  56. 

Riparian  rights  attach  only  to  lands  contiguous,  58. 
Cannot  be  divided  between  riparian  proprietors,  63. 
Right  to  use  for  canal  to  convey  water,  246. 

WATER  RATES. 

(See  Statutes  of  States  and  Territories  on  subject.) 
How  fixed  in  California,  253. 
Kansas,  438. 
Nevada,  404. 
South  Dakota,  473. 
Colorado,  559. 


INDEX.  791 

WATER-RIGHTS. 

(See    Appropriation;    Riparian    Rights;   Irrigation;    Water;    Water- 
Courses;  Common  La^v  Doctrine.) 
Aria  region  theory  of,  at  first  rested  on   mining   rules  and  customs 

^°3-  .     ^    , 

Acquired  under  foreign  grants,  protected  by  the  United  States,   130, 

132. 
Pre-existing,  not  effected  by  Congressional  grants,  141. 
Specific  rules  governing,  under  jurisdiction  of  various  States,  145,  146. 
Of  what  consists,  223. 

May  be  transferred  in  same  manner  as  real  estate,  223. 
Conveyance  of,  264,  265. 
When  an  appurtenant  to  land,  267-270. 
Acquired  under  Mexican  and  Spanish  laws,  2S9-292. 
An  actionable  injury  to,  321. 
How  adjudicated  in  Colorado,  561. 
(See  also  Statutory  enactments  upon  subject.) 

WHO  ARE  ENTITLED  TO  APPROP  RI-'^TE  WATERS. 

(See  Appropriation  of  Water.) 

Indians,  155. 

Corporations,  155. 

Aliens,  155. 

Any  person  competent  to  hold  real  property,  155. 

WHEN  APPROPRIATION  IS  COMPLETE. 
(See  Appropriation  of  Water;  Appropriators.) 
Water  must  be  actually  applied  to  some  beneficial  use,  167. 

WISCONSIN. 

Ownership  of  soil  under  fresh  water  navigable  rivers  in,  54. 

"WRIGHT  LAW." 

(See  Kansas;  Nevada;  Washington.) 
California  district  law,  558-596. 

WYOMING. 

Particular  features  of,  478. 

Irrigation  in  State,  479. 

Organizxition  of  ditch  companies,  480. 

Right  to  use  of  water  for  irrigation  purposes,  481. 

Penalties  for  destruction  of  irrigation  works,  481. 

Right  of  way  for  ditches  in,  481. 

State  control  of  waters,  482-493. 

Constitutional  provisions  of,  482,  483. 

Water  divisions  of,  484. 


792  INDEX. 

WYOMING.— Continued. 

State  Engineer  and  his  duties,  485. 

Division  Superintendents  and  their  duties,  486. 

Board  of  Control  and  its  duties,  487-489. 

Contests  respecting  water-rights,  488. 

Water  Commissioners  and  their  duties,  490. 

Construction  of  head-gates,   491. 

Statute  of   "State  Control"    and   "  District  Law  "  compared,  492. 

Riparian  rights  in  State,  494. 

Construction  of  measuring  devices,  491. 

Application  for  right  to  appropriate  water,  489. 


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